Appendix — Beadle v. Scholle
Supreme Court brief1964
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Ottice-Supreme Court, U.S.
FILED
OCT 15 196”
' JOHN F: Davis, CLERK
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» fT Ps CURT. U. &
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I THE
Supreme Court of ‘the United. Ptates
“OCTOBER TERM, 19585
FRANK. D. BEE
JOHN W.CU
YOUNGER..
and PAUL ¢
AUGUST. SCHOLLE, and J
tary of State ot-the State of Michigan,
Ot | _. Respondents.
No.
-
on
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ADLIX ALB
MAUSNEY,
ERT K:
satgidl \\.
ere
us. -
0: —————— saat areacancoeamne ae
APPENDIX TO PETITION FOR A WRIT. OF
CERTIOR. ARI TO THE ‘SUPREME COURT
_ OF THE STATE OF MICHIGAN bs
- WHITNEY Nort
AMES M.
oon
. ,”
BLASHFIELD,
F iTZGERALD.
Petitioners
H.ARIE, Secre- .
>
kpMUN
H Se YMOUV k
KENNETH J. Kwir
120) Broadway
New York 3
JEROME H. KERN
- New Vi irk
» I. SHEPHERD ©
Counsel fox Petitioners
700 American Bank & ‘Trust
Building .
~ Lansine*®
Of Comise!
A’. Michigan
.
* la
Appendix A
» 367 Micuican Reports, [July
‘7
:
.. SCHOLLE ¢. SECRETARY OF STATE.
ON REMAND.
1, GonsTITUTIONAL LAW—STATE SENATORS—EQUAL PROTECTION.
Provisions of State Constituyion presently setting forth districts
for election of State senators held, invalid p:ospeetively as a
‘denial cf equal protection of law under the Constitution of
the United States for la¢k af*a rational basis for the in-
vidiously discriminating apportionment made (US Const, Am
14; Mich. Const, 1908, art 5, §§ 2, 4, as amended in 195 52).
2. Saue—Seitaronrat DISTRIC Ts—DISparITy OF POPULATION,
Provisions of the Constitution of Michigaa relative to arrange-
ment of senatorial districts, as such ore stood: before
REFERENC ES FOR POINTS IN H&aDNOTES
{1,2] 18 Am Jur, Elections § 16 et seg. |,
[3,4,6] 43 Am Jur, Public Officers § 470 et éeq.
49 Am Jur, State Territories and Dependencies § 3
}&Am Jur, Elections § 16 et seq.
[5] 49 Am Jur, State, Territories and a §§ 34, 54.
{7,8} 18 Am Jur,Elections §§ 99-101.
[9] 14 Am Jur, Coste § 91. |
18 Am Jur, Elections § 321.
(176)
ippendix ol
1962] © ScHOLLE v. SEcRETARY OF STATE. 177
adoption of amendments hereby declared invalid, prohibit an
arrangement of such districts which would result in some dis-
te tricts having more than twice the, population of others, per
: Ruack, Kavanagn, Souris, and OTIs M. SMITH, ‘JJ., such
disparity of population being also offensive to the equal pro-
- tection clauses of the State and Federa’ Constitutions, per
Brack and Kavanaau, JJ. (US Const, Am 14; Mich Const
1908, art 2, § 1; art 5, §§ 2,4, as amended in 1952).
. y 3. SaAME—APPORTION MENT OF SENATORIAL DISTRICTS.
Legislation relative to apportionment of senatorial districts in
accordance with the State Constitution 4s it stood. before
adoption of amendments hereby declared invalid,-as construed
to prohibit any distriet from having .more than twice the
population ef any other district, may properly be enacted by
a legislature which includes a de facto senate whose existence
« continued for all valid purposes for balance of current term,
ak oo thereafter (Const 1908, art 5, §§ 2, 4, as amended
. in 1058).° eae ‘
4. Orricers—De Facto SENATORS.
Senators in thea presently constituted State senate, although
_ elected ander ors of the State.Constitution that are 1n-
valid by reason heing a denia! of equal protection of laws
under the Conggitution of the United States, are continued
for the balance of their current-term, but not thereafter, as
de facto -ofticers for all valid. purposes “(US Const, Am I4;
‘Mich Const, 1908, art 5, §§ 2, 4, as amended in 1952).°
“5 ELEcTIONS—STATE SENATORS. - :
The secretary of State, as chief election officer of the State, may
not presentky permit the election of State senators in the
absence of valid legislation or constitutional provision author-
izing him to do so.*
e
6. Orercers—Dr Facto SENATE. ,
The acts of the senate, created under an untouched provision of
% the Constitution, while continuing to fuvetion after, const?
tutional provisions apportioning the senatorial districts are
declared voi as a denial of equal protection of law under the
‘Pourteenth Amendment of the Constitution of the United
he : States, are upheld as the acts of a de facto body (US Const,
in 1952) .*
* See final paragraph of page 176 as to stay granted by“s justice
of the supreme court of the United States.— R=ZPORTEE.
An 14; Mich Const’ 1998, drt 5, §1; §$*, 4, a amended -
”
A ppendiy
178°
7. ELECTIONS—STAaTe SENATORS—STATUTES—CouRT ORDER.
The secretary of State is orderel to apply to the Supreme Court,
in the event valid legislation is not adopted for holding of
primaries and election of State senators within 33-day peried
all’ wed therefor, fur instructions, and orders enabling him
to. call and conduct a special State-wide primary election of ~
éandidates- 62 days hence, and conduct a State-wide election
of number of senators allowed by Constitution prior to adop.
tion of invalid amendment (Const 1908, art 5, §§ 2, 4, as
amended in 1952) .*
*
_ 367 Micuican Reports. [duly
8. SAME—STATE SENATORS—JURISDICTION oF SUPREM 4 Court.
The Supreme (‘outt retains jurisdiction of }:Jceeding wherein
election of State senators in conformity to provisions of State
Constitution as they stood prior to adoption of invalid amend
ments thereto is accomplished and complete disposition of the
Miatier is adequately provided (US Const, Am 14; Mich Const
1908, art 5, §§ 2, 4, as amended in. 1952). -
9. CosTs—-PUBLIC QUESTION-——ELECTION OF STATE SENATORS,
No costs are allowed in phoceeding involving the election of
‘State senators, a publie question being involved (US Const,
Am 14; Mich Const 1908, art 5, §§ 2, 4, a» amended-in 1952). .
Cara; C. J., and Dernmers and Kewy, JJ., dissenting.
Original petition for mandamus by ‘ August
Scholle, in his own behalf as a eitizen and elector in
the twelfth Michigan senatoria! dastrict, and in a
representative capacity as president of the Michigan
State Couneil, AFL-CIO, against James M. Hare,
Secretary of State, to command latter in the first
instance, not to issue 1960 election notices or per-
form acts requisite to election of ‘State senators
under the present senatorial districting, praying
that amendments to article 5, §$ 2 and 4, of the Con.
stitution be declared invalid as‘ violative of provi
sions of the Constitution of the United States,
praying that said sections in. respect to senate ap-.
portion.ient or -distrieting be declared unamended,
* See final paragraph of page 179 as to stay granted by a justice
of the supreme court of the United States.— REPORTER.
e t
2.
v
+4
ippendty af
1962 ScHOLLE v. SECRETARY OF State. — 179
that the Court declare that’ no apportionment or
districting. act is extant, and further praying that
lhe writ command defendant to declare and conduct
‘senatorial elections on an-at-large basis until an
apportionment or districting act ‘an be passed, and «
further praying that the Court retain jurisdiction
pending reapportionment.
Frank D. Beadle, senator from the thirty-fourth*
distri¢t, and Albert K. Blashfield, a constituent of
- the thirty. third senatorial district, on their motion,
Joined as parties defendant. John W. Cummiskey,
‘a constituent of the sixteenth senatorial district,
John W. Fitzgerald, senator from the fifteenth dis-
trict, and Paul @. Youager, senator from the four-
teenth district, on their motion to be joined as
parties defendant, permitted to intervene.
Prior judgment of Supreme Court of Michigan
(S60 Mich 1) dismissing petition vacated upon ap-
peal to supreme court of ‘the United States.
Submitted on remand July 2, 1962.- (Docket No.
63, Calendar No. 48,580.) + .Writ) of mandamus
granted July 187 1962, Amendments to-Constitu-
‘ tion 1908, art 5, $$ 2 and A, declared violative of
Fourteenth Amendment to €onstitution of the
Wnited States and therefore invalid. ' Reference
miade to governor and legislature for. reapportion-
ment under previously existing constitutional provi-
sions, the presently constituted senate being ad-
"judged to ke a@ontinuing de facto body. Jurisdie-
tion retained pending transition. se ctions given
as to conduct of elections for State senators.
On guly 27,1962, an order was alae by a justice °
of the supreme court of the United States to stay
the ‘senatorial redistricting order of the Supreme
Court of Michigan pending the timely filing of a peti-
tion for writ of certiorari and a further. stay pending -
the final.disposal of the petition.
Ja
Appendix
s
180 367 Micuican Reports. - | [July
Rothe, Marstcn, Mazey, Sachs ¢ 0’ Connell (Theo-
dore Sachs, of counsel), for plaintiff. .
Frank J..Kelléy, Attorney General, and Eugene
Krasicky, Solicitor General, for defendant, con- .
cluding certain provisions: violative of Federal Con-
stitution and suggesting remedial measures.
§
Edmund E. Shepherd, for intervening defendants —
and intervenors.
Amicus Curiae: Creighton R. Coleman, in propria
persona. ‘
Ox REMAND
Kavanacu, J. As we approach determination’ of
‘the’merits, following vacation by the supreme “court
(Scholle vy Secretary of State, 369 US 429 [82S Ct
~ 910, 8 L ed § 2d 1]), of the judgment entered here
June 6, 1960 (360 Mich 1), each unmanageable mem-
ber of the Court faces an arrogant and amply head-
lined threat of impeachment “if the senate districts
are declaréd ilegal.”? This threat should neither
hasten nor slow the judicial process.* It does call .
into play Marshall's grim words (quoted in O’Dono-
ghue'v. United States, 289 US 516, 532 [53 S Ct 740,.
77 L ed 1356]):
“The judicial department ‘comes home in its ef-
fects to every man’s: fireside; it paSses on his prop-
erty his reputation, his life, his all. Is it not, to
the last degree important, that he (the, judge)
ee a
1 Detroit Free Press, metropolitan edition, Friday, Jens 29, 1962,
front page article, under headline “Threaten to Impeach Teo Court.”
2 Today's effort to intimidate the Court, fiads its historic counter-
part when, in Marshall's time,a “ seethingly hostile” congress “closed
down the supreme court for a yea: That ehallenge of judicial
independence, and the way it was handled ultimately by, the Marshall
court, is chronicled in Rodeil’s “Nine Men,” pp 85-90 (Random
House, New York 1955).
- We
Appendix ol -
s
1962] _-‘ScHoue v. Secretary or Srare. 181
should be rendered perfectly and completely ‘in-
dependent, with nothing to influence or control him
but God and his conscience? *.* * I have always
thought, from my earliest youth till now, that. the
greatest ‘scourga an’angry Heaven ever inflicted
upon’an ungrateful and a sinning people, was an
ignorant, a corrupt, or a dependent judiciary.”
Only an ignorant, a corrupt, or a dependent judge
would cringe and pause before any such formidable
threat. We choose instead to consider and execute °
’ the duty which bas been east here by the supremacy
clause and the oath alf judicial officers of Michigan
have taken. ; 7
If the laws of Michigan, brought now to question
again, de offend the tight of thousands upen thou-
sands of Michigan citizens to federally guaranteed
equal protection, and the writer did so find more
than 2 years ago, .then this Court, loyal to its oath,
should say so now; now that jurisdiction to Say sO
has been specifically confirmed by. the Un:ted States
_ Supreme court. Failing in such regard, another
biennially extended election of members of the upper
-hotse will have coma and gone under patently un-
constitutional law; law so invidiously diserimina-
‘tory that but feeble effort is and can be made to
sustain it as against the current surge of national |
authority which, almost. daily, arrives from a
steadily inereasing number of the States. Indeed, ¢
the position. of these intervening defendants. seems
only to be that a little equality goes a long way and
that too much equality goes too far.
~The Supreme Court :c. Michigan did not ask for.
submission of this issue and its now unavoidable
determination. Some of the veterans of the legis-
lature, along with their predecessors, failed regu-
larly to execute .the constitutional oath each had
taker to redistrict and reapportion under original
section 4 of the fifth article of the Michigan Con-
u “
.~
Appendix
182 7 Micnican Reports. [July
- stitution (1908). They and eet Slene are respon-_
sible for justiciable presentation and consideration
of the issue before this Court.. Had the ‘y faithfully
and decennially executed said section 4 the powers
of this Court, and those of the United States su-.
preme court, never could have been invoked ;, nor
would those powers now be called to action. So
much for any Suggestion that the courts: of this
country are invading?®ithout Warrant the processes
and powers of a separate branch of government:
What the courts do is no invasion; it is no more and
no less than performance of their duty to guard
Vigilantly government by constitutional law.
Is it not true that. this Court of last resort of
a State, when it ts called upon to determine the
merits-of a duly presented and manifestly decisive
Federal question, sits for the required time as an
inferior court of the United States? And is it not.
true that, for solution of the presented question, we
are obliged to hold that the Constitution ‘of the
United States is coniroelting where, as found here,
one of ‘its provisions stands in conthet with provi-
sions of a State Constitution? For amexsr see
Testa v. Katt, 880 US 386, 890, 391 (67S Ct 810, 91
L ed 967, 1i2 ALR 225), wherein Clatlin v. Mouse-
man, 93 US 150 (23 Ped $33),2 was unanimously
characterized as follows:
“The opinion of a unanimous court in that.« Case
Was strongly buttressed by historic references and
-'3 Thi is yp assage. taken from the Clafin Case, exposes: the rule fully
(Pp 137): ; f oth wa
“The fact that a State court derives its existence and functions
from the State laws is no reason why it should not aYord relief;
because it is subject niso to the Jaws of the United States, and is
just as much boun! to recognize these as Gperative within the State
4s it is to-recognize the State laws. The 2 together form l system
of jurispruc dence, which constitutes the law of the land for .the,
Stute; and the cia of the 2 jurisdictions are not forcign to each
other, nor to be treated by each other as such, but as courts of, the
same couutry, having jurisdiction partiy different and partly cou-
current.”
wos
: }
be y= Ka
t
. <i ppendixr o{ -
1962] Senouur v. Secretary or Starter. 183
persuasive reasoning. It‘ repudiated the asgump-
tion that Federal laws can be considered by the
States as though they were laws emanating from a
foreign sovereign. Its teaching is that the Consti-
tution and, the laws passed pursuant to it are the
Supreme laws of the land, binding alike upon States,
courts, and the people, ‘any thing in the Constitution
or laws of any State to the contrary notwithstand.
‘ing.’ It asserted that the obligation of States ‘to
enforce these Federal laws is not lessened by reason
of the ferm in whieh ‘they are‘’cast or the remedy
which they provide.”
Lest someone migtit suggest that we are not
speaking in this. context of’ State constitutional
provisions and State statutes alike, we would refer
tiiem to the rule of Standard Computing Scale Co.
v. Farrell, 249 US 571, 57% (39 S Ct 380, 63 L ed
TRO) : ie ,
“For the protection of the Federal Constitution
applies, whatever the form: in which the legislative
power of the State is exerted: that is, whether it be
by ‘a constitution, tn aet of the legislature,’ or an
act of any subordinitte instrumentality of the State?
exercising delegateli legislative authority, like an.
ordinance of a municipality or an order of: a com.
mission., Great Northern R. Co. v. Minnesota, 238
US 340 (35 S Ct 753, 59 L ed 1337): Home Telephone
& Telegraph Co. v. Los Angeles, 227 US 278, 286-
288 (33 S Ct 212,57 L ed ‘10) ; State of Washinaton,
ex rel. Oregon Railroa . Navigation Co.. v..Fair.
child, 224 US 510 (398 Ct 535, 56 L. ed 863): Grand
‘Trunk Western R. Co. vy. Railroad Commission of —
Indiana, 221 US 400, 403 (31 S Ct 487, 55 L ed
786).”
.
The decision of the supreme court; reversing our —
majority decision and remanding the case for fur-
ther consideration in the ligut of Baker vy. Carr,
‘369 US 186 (82S (4 691, 7 ‘L ed 2d-663), was handed
down April 23, 1962. Accordingly, and at the’ be-
\
Ga
eippendix <1
184 - > 367 Micrican Reports. [July
ginning of .the present term, the following order
for resubmission was entered (June 5, 1962): :
“In this cause a_ motion is filed by plaintiff for
summary Judgmen} or in the alternative to advance
the cause for prompt hearing, and answers thereto
having been filed by defendant and by intervening
defendants, and due consideration thereof having
been had by the Court, it is now-ordered that the
case be and the same hereby is ordered submitted
for rehearing on July 2, 1962 at 10 e’@leck in the
forenoon of that date, such rehearing to be on
present appendices and briefs as -filed with our
clerk augmented .\by the United States supreme’
court's opinion of *April 23, 1962 in this eause,* and
by such additional briefs as counsel may be advised
to file on or before the oral arguments scheduled
above.”
In pursuance of such order the case was fully re-
submitted: No further proof or pleading was of-
fered. Neithe® was request made for submission
of further proofs. Thus the case is before us on
a record made.more. than 2 years ago; a record each
then member® of the Court must have stuaied with
painstaking cire prior to consideratioy and review
-of the exhaustive opinions which appear between
“pages 1 through 125 of the 860th Michigan Report.
It is false, then, to say that meager time has been
allotted for proper consideration ‘of the merits: of
this all important case. Doubtless no case sub
mitted to'this Court in modern times is known. so
well.to the members who would protest thai our
determination of the merits should be délayed the
more that they may study it the more; pointedly
until that determination comes too late for legisla-
tive reapportionment of the senate and senatorial |
ee
4°‘Schélle vy. Secretary of State, 369 US 429 (82 8 Ct 910, 8S L
2d 1).— REPORTER.
8 Justice OTIS M. SMITH is the only present; participating Susties
not then a member of the Court.
10a en:
Appendix oi
1962 * Scuouie v. Secretary or State. _ 185
elections this year; likewise too late for direly per-
tinent advices the presently assembled constitu-
tional convention should receive and heed before it,
as imminently provided, passes. for all time. into
the pages: of history. By Magna Carta’s fortieth
grant, “To none will we sell, to none will we deny,
or delay, right or justice.” © sbi
Now that 2 years have intervened since the deci-
sion of this Court in the case of Scholle v. Secretary
of State, 360 Mich 1, we ask ourselves: Are there
any intervening facts, judicially noticeable or other-
wise, that would change the former finding that the
present senatorial districts of Michigan lack a ra-
tional, reasonable, uniform, or even ascertainable
nondiscriminatory legislative purpose?
None has been suggested, and we find none. A
comparison of the population growth using the 1950
and 1960 Federal censuses indivates that the dis-
parities are growing with the popalation increase
at an average of approximate y 150,000 persons per
year. A | ve
The absence of any semblance of design or plan
‘in the present: senatorial districts was’ recently...
acknowledged by D. Hale Brake, a Michigan lawyer
and former State treasurer from 1043 through 1954,
now a constitutional convention. delegate, in an.
article entitled, “The Old and the New’ Constitu-
tions—a Comparison and Appraisal” dated May 16,
1962, sigyfd by Mr. Brake, Director, , Education
Divisigf, Michigan Association of. Supervisors, 319
snawee, Lansing 32, Michigan, and’ sent to
‘the. members of the association. Mr. Brake con-
cluded with appropriate accuracy : :
“Our present senate, of course, does not follow,
“any plan. It is‘simply an arbitrary freezing in of
Various districts.”
lla’ ‘
Appendix Ae ASR ay A
186 367. MICHIGAN Reports. ; [July
‘
g
Having duly considered the additional brief s sub-
mitted, the oral argumentsamade by the parties and
for the reasons set forth An detail in my opinion.
reeorded in Scholle ;v. Secrétary of State, 360 Mich
1, we hold plaintiff has been and is being deprived
of the equal protection of the laws withip the mean.
' ing of the Fourteenth Amendment to the United
o
States Constitution, by the provisions of article 5
of the Michigan Constitution of 1908, as amended
in 1952, by which plaintiff's vote for the office of.
State senator is invidiously unequal to the votes
cast for State senator by other citizens of the State,
the classifieation of citizens ‘In the senatorial dis-
tricts being arbitrary, discriminatory, and without
reasonable or just relation or felevance tothe elec.
teral process. Sections 2 and 4 of article 5 of tho
Michigan Constitution of 1908, as amended in 1952
are therefore declared a violation of the.F ourteenth
Amendment of the United States C onsti itution and
are’ void. . Seen
We turn then to a consideration of the provisio: 1s
of article 5, sections 2 and 4 of the 1908 Constitution
without the 1952 amendment,® to test the. present
senate aMportionment in the light of adjudicated
cases of the Michigan Supreme, Court and the ap-
plication thereto of therF ourteenth Ame ndime nt. We
6 Sections 2 and 4 of article 5 of the Mich! igan Co institution (1908
without the 1952 amendment read as follows: .
- “See. 2. The senate shall consist uf : 32 members. Senators shall-
, e . }
‘he elected for 2 years and by single Wistricts. Such distTicts shal!
be numbered from 1 to 32, inelusive, exch of which shall choose ‘1
senator. No county shall be divided in tHe formation of senatorial
districts, uniess such county shall be equitably entitled to 2 or more
senators.’
“See. 4. -At the session in 1913, and each tenth veat thereafter, the
jegisiatu » shall by law ‘rearrange the senatorial dist ricts and appor
tion arrew the representatives among the counties and distriets aceord:
ing to the number of inhabitants, using as the basis for such appe
‘tionment the last preceding. United States censits of this St
Each apportionme nt so made, any the division of anys goeunts into”
representative districts by its board of supérvisors, made thereunder,
shall rot be altered until the tenth year ‘there after.” .
o~?
e
“menace to free institutions.” ar
12a
Appendix 4
1962 ScHOLLE v. SECRETARY OF STATE. 187
Mich 1 (16 LRA 402), considering a similar action
by citizens to declare statutory rearranging of the
_senate districts unconstitutional ‘and void, where
Justice Grant, speaking for the Court, said (p 7):
“It was.never contemplated that 1 elector should
possess 2 or 3 times more influence, -in the person
of a representative or senator, than another elector
in another district, Each, insofar as. it is practi-
cable, is, under the Constitution, possessed of equal
power and inffuence. Equality in such matters lies
at the basis of our free. government. It is guaran-,
teed, not only by the Constitution, but by the ordi-
nance of 1787, organizing the territory out ‘of which
the State of Michigan .was carved.”
Justice Graxi went on to say (p 8):
“It (the Constitution) requires the exercise on
the part of the legislature of an-honest and fair
diseretion. in apportioning the districts so as te
preserve; as"nearly as may be, the equality of rep-
resentation.”
Justice McGratn in a “concurring opinion in
Giddings said (p 13): 7
“The purpose of. the constitutional énactment is
to secure as nearly as pdssible equality of represen-
tation. Any apportionment which defeats that’ pur-
pose is vicious, contrary not only to the letter of the
Constitution, but to the spirit of our ‘institutions,
and subversive of popular-government... Power se-
cured or perpetuated: by unconstitutiona] methods
is power. usurped, and usurpation pf power is a
The Court stated its conclusions as follows. (p 9):
“I. The petition is properly brought. into this
Court by the relator. a ree et ane
- “2. The Court has jurisdiction in the matter. .
find our Court in Giddings vy. Secretary of Staté, 93.
¢.
hare
s :
: 13a
ea eerie “Appendix i
188 > 367 Miciicax Daiices | [ July.
“3. The apportionment. acts of. 1801 and 188) ere
unconstitutional and: void. :
“4. The writ of mandamus must issue, restrain
ing the respondent from issuing the notice of election
under the act of 1891, and direeting him to Issue
the notice under the apportiotment act of TSS], tam
less the executive of the Stafe shall call a special
session of the legislature to Tagg uke a new apportion:
ment before the time expires for giving such natice.”
Fourteen years later, in the June ‘term of 1906,
this.Court again had before it:similar reapportion-
ment acts according to 'which certain senatorial dis-
tricts had more'than double the population of others,
The Court again ruled in accordance with Giddings,
that such a disparity between districts made the
acts unconstitutional. See Williams v. Seeretaru
of ‘State, 145 Mich 447. .- : a
Ht is to be noted that Justices Douglas, Black,
and Murphy, dissenting in Mackougen ve Green,
335 US 281, 28s (69S Ct 1, 98 Teed 3), stated: .
“None ae" deny that a State law giving seme
citizens twice the vote-of other citizens.in either the
primary or general election would la¢k that equality
which the Fourteenth Amendment guarantees.”
. We would conclude, then, under the rule of Wil-
liams and Giddings as applied | by our-own Court,
that any law of our State giving some citizens more
than twice the votes of other citizens’ 1
‘primary or general eléction would fack consfitu.
tional equality so.as to void that-law. \ Here then,
written in Williams and 48 years later by dissent.
ing justi¢es in the MacDougall Case, is a maximal
standard by which the legislature and the constitu-
tional convention may receive fair guidance. -When
a legislative apportionment. provides districts hay-
ing. more than double the population of others, the
7 Ratio of representation. awe present sciatorial ap portiona nf
1950 census ap eee 7 to 1; 1960 census approximately 12 to 1.
”
in either the’
Jae : | . +4 $ ; ‘ * I ppevidix |
oe dda
1962] . Scuon LEY. SEc RETARY OF, Srate, 189
eons ititatoeal range ‘of ices ‘tion is violated. This
1s not té’say that less than such 2 to 1 ratio is con-
“Stittitional is good. It-is to say only that peril ends:
and disaster occurs when that line is crossed,
We regard Mie his: in as fortunate for, unlike other
States, we have in’ the W dlhiams and Gide dings Cases
sate ‘a! inte rpretation in applying the identieal eon-
stitutional. phrases to which the legislative destiny
Sof Michigan ig now returne '. We hope the legis la-
fure’will act promptly to fill the void, and that its
prompt action sill eliminate need-for a State-wide
at large primary and gerenal ele tion of State sena-
.{ors.. ° ’ : .;
The William s Case the doetrine: of which we now
affirin, matrks the outermost houndary of that con-
stitutional _dise ‘retion which, in 1008, the bia
awarded: 10 the Jegishaturt In the name of local ;
Weilus national equal protection. »Equal protec ioe,
in the context of this case, does not mean arithmeti
enl equality, Section 2's restric tion against division
ofa county and the stated exception to suely restric
Ton, alone would prevent sugh arithmetical equality,
It — mean that equality. Which fairly approxi.
Inates, by the st: andi rds of reasonable m indo NeTCIS~
Ine fuir-dise eretion, theet Which should-have been done
decennially between TOS aigd 1952 and must now be
done te emsure that reason: th lviuniform right of gov-
ermmental representation Which came t odite bt im-
pact of the Declaration of Independence. It means,
toe, that) when any apportionment plan provides.
some elective districts having more than double the
poptlation of others, that Plan cannot be sustained.
And so we hold. i tr) tinaal Sure nation that the Four-
teenth Amendment and our own corres pondiiy
o
ie
. €
‘|5a
o
Ippendix ol
190 > 867° Micnican Reports, - [July
pledge of the. protection, af equal laws (art 2 , $1)
do ‘require that the senatorial districts of Mich; igan
be so arranged as to be consistent. with the foregoing
- maximum Z-to-1 ratio.
That is enough for decision of the present case.
We may add, however, that other programs creating
elective districts, W hether on an area versus popula-
tion basis,‘or gerrymandered as to shape or want ot:
contiguity, or plaared for purposes of invidious dis-
crimination or iniquitous advarit age, My some day
be presented, to this Court for test ‘against the
national and State equality clauses, ‘but we do not’
pass on them at the present time, There could be no
question, however, that they would have to meet the
foregoing test set-forth in the W lhams and Giddings
Cases and in Mae Dougall v. Green, supra. Perhaps
they would be required to do more, but certainly not
Due consideration having been given to the fore-
going conchrsimis and findings, and the Cgurt being
fully advised, it is now and here adjudged and or-
dered as follows: . at
(1) That present sections 2 and 4 0f article o of
‘the Constitution of Michigan (1908), referring spe
eitiealiy to those ae ae, ae ratified at the general
election held November W, 1942, do as charged by
plaititt offend and therefore do fall before ihe
equality clause of the Fourteenth Ame ndment of the
Constitution of the’ United States. Said seetions 2
and 4 are consequently adjudged’ invatid, prospec:
tively from) and after-the date hereof, :
(2) That no legislation exists in Michigan, étfect
edveither by statute or constitutional provision. un
. eve equality of rights prote peted hy our Constitution is the same
as khat yryserved bw the Fourteenth Amendment to the Fedterni Con
stititiqn. In re For's Estate, 15% Mich 5.” (Quotation from
\ anda tus vo Lanr, 25° Mich wie pp o4 AIR 118%, 30 NCCA-179]
follawed tn Cook Coffee ©u, ¥. bidlage ‘of Blushing, 267 Mich Jo)
e
la
elf PenadInr |
1962}. * Scuorie rs ECRETARY oF STATE. 191
idates for the’ office of State
~ senator may validly bd elected for the biennial term
commencing January J, 1963. :
(3) That the -primalry election of candidates for
the office of State semator, scheduled now in the
hitherto constituted 34 senatorial districts of Michi-
van, for conduct on Angust 7; 1962, be and the same
is restrained and enjoined by force of this Court's
writ of «mandamus, which. writ. shall-issue forthwith
_to-the defendant secretary of State. The defendant
secretary, as chief election officer-of the State and
supervisor of all local election officers in the perform-
ance of their duties,® will by timely regulation and
instruction do and perform suc’ acts as will ensure
State-wide observance of the restraint directed by
said writ. ‘
(4) For the purpose of ensuring validity of all
levislation which, being otherwise. valid, may have
been enacted into statute by the legislature prior to
the date of this judgment; and for the further pur-
pose of ensyring validity of legislation and: joint
resolutions (for submission of any proposed consti-
tutional amendment) as may hereaftes be enacted
into statute or adopted by the legislature during the
reraainder of the year 1962; and for the further pur-
pose of providing means for the enactment of valid
‘new legislation during the present legislative, ses-
sion, comperting with original sections 2 and 4 of
said article 5. and for the further purpose of provid-
ing means by which this judgment may receive
prompt per formance and due execution, it is ad-
judged that the presently constituted senate shall,
from this date and until December 31, 1962, but net
thereafter, fune tion § us a de facto body and that the
2 Pertinent sections e the Mic asia election law as anne eC LS
1956, § 168.21,-and CLS 19: 56, § 168.21, as amended by PA 1957, No
249 [Stat Aun 1956 Kev § 6. 1021 anu Stat Aun 1961 Cum aitied
§ 6.1031]).
der or by which cand
o
fa . :
[ppendix
192 367 Micuican: Repor7s. | July
‘members of the senate elected as sueh for the current
term shall, from this date and until Dece anber 31,
1962, but not thereafter, func tion as-de facto officers
far all, v: alid purposes. Refefence is pertinently
made to the general rule that where the law creating
a public office is declared void the acts of an officer
continuing to function thereunder will, until he is
legally succeeded, be mphets as the acts of a de facto
ame er, See People v. Bichleu, 3802 Mich 12; People
Russell, 340 Mich I O38 Greyhound C orp. V. Public
Service Commission, 360 Mieh 578."°
(>) That the governor and legislature be advised,
respectfully by the judicial deparimnent, that legis
lation Is urge athy required under and in pursuance of
original secticns 2 and 4 of said article 5, by Which
32 senatorial districts of Michigan are ar ranged ace
cordim to the number of inhabitants of the State as
shown by the most recent U nited States census of
Michigan, and under and in pursneince of whigh can:
didates for the office of senator in eaeh of suck ne wy
arranged districts may be nominated and cleeted for
the coming biennial term.
(6) Inevent valid Jegislation, recommende dafore-
said, is not enacted with tleeessary imme diate effect
onor before August 20, 162. the defendant scere-
tary will apply forthwith to this Court for such in
structions and orders as will eridbiles him to call and
conduct a special State-wide primary election of
ex ididatys for the offiee of State senator om Septem
ber 11, 162, and as will enable him to eall and eon
duct a State wrele election on November 6, M62, of
the necessary number of State senators, o2 all, for
such coming biennial tern. ,
(7) Phat jurisdiction of this eause be and is re
nined indegimitely, pending further order or orders,
until the transition from pnvalid sections 2 and 4
10° t part of the opinten of the Greyhound Case which dealt with
the re va of oe fac fe otheers Was Ubahimeus.
te
iXa
eIppendtxy .1
1962] ScHOLLE v, SECRETARY OF STATE. 193
of said article 5, to original Sections 2 and 4 of saig
.
article 5, is fully accomplished and complete dispo-.
sition of the involved subject matter is: adequately
provided, . ;
It necessary, additional appropriate‘ writs: will
issue by the presently seated Court for due enforce-
ment of the foregoing judgment.
No costs, a. public question being involved,
Buack, J., concurred with Kavanaai, J.
Carr, C.J. (dissenting). This ease involves an at-
tack Ivy plaintiff on the validity of article 5,8 my Ot,
the State Constitution (1908), as amended bY vote ~
of the people at the November election in 1952. Said
section relates specifically to the State senate and
the election of the members thereof by single dis-
tricts, The amendment was proposed and submitted
to popular vote on the basis of petitions. filed by qual-
ified and registered electors of the State as provided
in article. 17, $ 2, of the State Constitution as amend-
ed at the general election of April 7, 1941. At the
Ito2 election there was also submitted a proposed
muendment requiring: that the members otf both’
houses of the legislature be selected on the basis of
a Jegisiative apportionment in accordance with. pop-
ulation. The latter amendment was defeated while
the adoption of the am: ndment here in question was:
carried by a substantial vote.
The amendment now attacked was submitted on
-the ballot as “Proposal No 2", its purpose being de-
clared to be “to establish senatorial distriets and pro.
“vide for “decernial reapportionment of répresenta-
tives.” (PA 1953, p 438.) Considering the amend.
ment in its eritirety as relating to the election of the
members of fhe bicameral legislature, it was obvious-
ly the intention of the people that members of the
house of representatives should be selected from dis-
19a
wl ppointdix ol
19% 367 MicuicaN Keports. (July
tricts which shall contain “as nearly as may be an
_equal number of inhabitants.” Insofar as the senate
was concerned the people yidertook by the amend-
ment to divide the State into 34 distrivts, from each
of which a member of the senaté should be elected.
Said districts, were specifically set forth in article 9,
$2. Senatorial districts as previously existing were
materially changed, and the number bivreased from
32to 34. That the facter of population was not over-’
looked is indieated by the provision of said section
that senatorial districts within a cgunty shall gon:
tain, as nearly as may be, an equal number of ini
habitants. Unquestionably the bdsie plan of thy
people as set forth in the amendment was to divide
the State into designated districts, the geographic
division being adopted. as stated. "The provision in
the Federal Constitution for 2 senators from each
State may have served to suggest such method.
It must. be assumed, and it clearly appears, that
‘the people in making these provisions for selection
of members of the house and senate sought a general
plan for the legislative department of the State gov-
ernment that would best serve the State as a whole.
While population is the controlling factor as far as
representatives are coneerned, it Was obviously
deemed that the rights of the people living in ditfer-
ent sections of the State would be best protected by
the adoption of a geographical basis, in part, of ap-
' portionment as to the senate, It is, of course, appar-
ent that if the members of both houses are selected
on a strictly population basis the urban industrial
centers, having the largest number of inhabitants,
would be énabled to dominate the legislative depart-
ment of the State government. [t was this kind of a
situation that the framers of the amendment now in-
question here,and the people adopting it, had in mind
at the time. The question now presented Is, was
such plan irrational? Must it be said that it consti-
’ ‘ 3 : 20a
; | Appendix al
1962) ScHouce v. SECRETARY OF STATE. .— 195
J
tutes an “invidious” attempt to deprive auy section
of the State, or any*portion of its inhabitants, of
their just rights under‘the fundamental laws of the
State and of the Nation?
-.In attacking article 5, § 2, of the Constitution, as
amended, plaintiff insists that it violates the equal
protection clause of the Fourteenth Amendment to
‘the Federal Constitution. In his petition for a writ
of mandamus to prevent the seeretary of State, de-
fendant herein, from = issuing election notices’ for
State senators to be chosen at the 1960 general No-
‘vember election the claim is advaneed that senatorial
districts must be established on the basis of. popu-
Jation. Obviously it is the claim that in electing mem-
bers of a bicameral legislature population must, be
the sole criterion to be followed, and thut any plan
«
involving an attempt to protect the interests of The
less densely popucated sections of the State is invalid
because not affording-equal protection to residents in
heavily populated urban centers. We are aot in ae-
cord with sueh theory. .
- The case was instituted in this Court by petition
for.a writ of mandamus against the seeretary of
State requiring that official to refrain from acting
und rthe Michigan election law with reference to the
election’ of State senators. Said petition does not
specifically allege wherein plaintiff or others whom
‘he claims to represent have actually been prejudiced
as a Fesult of State senatars being chosen in Michi-
gan at the last 4 general November elections. in ae-
eOrdance with the amendment of 1952. There is no
showing that as a resuit of such method of senatorial
selection improper legislation has been enacted to the
prejudice of plaintiff os of others. In view of the
record of the Michigan legislatare there would seem
te be no basis for any possible argument that the
State of Michigan has suffered, or that any se¢men’
of its population has been prejudiced. The realistic
j
ae
2la
Appendty 1 aoe y
196 367 Micnican Reports. ‘Maly
situation presenied is that no’ section=of the State
has suffered from legislative discrimination. There
is no showing that either house of our legislature has
failed to discharge its responsibilities to the public
generally, or that the basie principle of equal protec-
‘tion of the laws has been violated because of the ohan
adopted by the- people acting in’ their sovereign |
capacity at the 1952 election.
When the controversy first came before this Court
in 1960 a majority of the justices concluded that un-
der prior decisio -s of the United States supreme
court. including Culegrove v. Green, 828 US 049 (66
S Ct 1198, 90 L ed 1482), and other decisions of like
import cited by Mr. Justice Eowakps in his opinion,
the nature of the issue did not bring it within the
scope of the, jurisdiction of this Court, and that such
Jssue wis not a justiciable one. Accordingly, piain-
“tiff’'s petition was denied (360 Mich 1), and his subse-
quent application: for rehearing was a!so denied.
Thereupon plaintif? sought to appeal to the supreme
court of the United States. | P
Thereafter the case of Baker v. Carr, B60 US 186
(S28 Crt 69], 7 L ed 2d 665), was submitted to the
Supreme Court forsdetermination. The ease was an
appeal from the decision of a Federal district court
rejecting an attack on legislative ‘apportionment
statutes of Tennessee. In that case the’ State con.
stitution required reapportionment at regular inter:
vals. but the jegislature had not tuken action since
1901. In other words, there was no compliance by
the State legislature with the mandate of constitu.
tiotial provisions by whieh it was bound. ‘The sn-
‘preme court, Justichs Frankfurter and Harlan dis-
senting. concluded that a justictable question Was In:
volved and remanded for further consideration of the
controversy on its merits, [n taking such action at-
tention was called (p 1) to the fact that the funda-
mental law of Tennessee did not provide for the ex-
@¢-.
9
ee en es
Ippendiy of
1962 ' ScHOLLE v. SECRETARY OF STATE. 197
ercise of the power of the initiative or the referen-
dum on the'part of the electors of the State. It was
suggested that under said cireumstanees no remedy
-Was available other than by appeal to the court.
Obviously such“is not. the situation in Michigan.
Here the power to initiate, by petition; legislation and.
constitutional amendments (as well as the referen--
dum) is reserved to-the people by the express lan-
guage of our Constitutio..
_ Following the action taken in the Tennessee case
the supreme court of the United States remanded the
present controversy to this Court, directing by man-
date received under date “of: May 29, 1962, that we
- give the case further consid>ration in-the light’ of
Baker v. Carr. We do not understand from the
opinions fled by members of the court of last resort
of the Nation that any question’ was determined
other thin that the controversy is Justiciable. In
Consequence, We are now confronted by tne question
whether it must be said that the plan adopted in 1952
by the people of this State with reference to the selec-
tion of inembers of its bicameral ilegislature offends
the equal protection clause of the Fourfee.th Amend-
ment. : .
In MacDougall ©. Green; 335 US 281 (69S Ct 1,93
“Led 3), the court refused to hold invalid an Illinois
statute relating to the nominatidn-of candidates for
a new political party, it being contended, as in the
‘ase before us, that the Foirteenth.Amendment was
veolated. Cotmmenting.on ‘the issue involved and the
arguments advanced, it was said (pp 2837.284) :
“To assume that political power is a function ex-
clusively of numbers is to disregard thé practical-
ities of government. Thus, the Constitution ‘protects
the interests of the smaller against the greater by
giving in the senate entirely unequal representation
to populations. It would be strange indeed, and doe-
trinaire, for this court, applying such bréaT consti-
.
| e
. wl ppendir 1
“198 367 Micwidan Reports. : [ July
‘tutional concepts as due process and equal protection
of the laws, to deny a State the power to. assure a
proper diffusion of political initiative as between its
thinly populated counties and those having concen-—
trated masses, in view of the fact that the latter have
practical opportunities for exerting their political
weight: at the polls not available to the former. - The
“Constitution—a_ praetical instrument of govern-
- ment—-makes no such demands on the States, Cote-
qrove Vv. Green, S28 US 549 (66S Ct 119s, GO L ed
1432), and Colearove v. Barrett, 380 US S04 (OFS Ct
973, 91 L ed 1262).” .
- ° . . Ban . : : ,
We note that in the opiyion of Mr. Fustice Stewart,
who concurred inthe holding: of -the majority in
Baker v. Carr, supra, reference Was made to the |
ab ove quoted éase, it being said that (pp 265, 266) :
. 2
“In MacDougall v. Green, 385 US 281 (69 S Ct 1,
93 L ed 3), the court heid that the equal protegtions ~
clause does not ‘deny a State the power to assare a
proper diffusion of political initis ‘ive as between its
thiniy populated counties and those having concen-
-rated masses, in View of the fact that the latter have
practical opportunities for exerting their political
weight at the polls not available to the former.’
yon
ebeded
US, at 284. In case after case arising under the equal .
protection clause the court has said what it said
again only Yast term—that ‘the Fourteenth Amend-
ment:periuits the States a wide scope of diseretion in
- enacting laws which affect some groups of citizens
differently than others. MeGewany. Maruland, 566
US 420, 425 (SIS Ct 1101, 1158, 1218, 6 0 ed 24.893).
‘In case after Catt arising under that, clause we have
also said that ‘the burden of establishing the uncon-
stitutionality of a statute rests on him who assails
it’ Metropolitan Cusualty Ins. Co. ve Brownell, 294
US 580, O84 (55 S Ct 55g, 79 L ed 1070).
“Today's decision does not turn its back on these
settled precedents. [ repeats the court today decides
only; (1) that the district court possessec jurisdic-
tion of the subject matter; (2) that the complaint
© mo
*
QR
er ,
24a
- eippendir of
1962] ScHoLLE v. SecRETARY OF STATE. . 199
presents a justiciable controversy; (3) that the ap-
pellants have standing.” M
Reference to the MacDougall Case was also made
inthe opinions of other. justices. We have before
us, therefore, the question hereinbefore stated, that
is, whether the plan adopted by ‘he people in the
1952 amendment to the Constitution is irrational and
discriminatory to a degree requiring ‘its ¢expunging
from the furidamental law of this State on the ground
that it violates the equal protection clause of ‘the
Fourteenth Amendment to the Federal Constitution.
Applying the principle announced if Ma¢cPouaall vy.
‘Green, supra, we submit that such question must be |
answered in the negative. Such plan was adopted.in
the light of circumstances prevailing in the State of -
Michigan, with reference to varied conditions exist-
ing in different parts of the State, and for the proper
purpose of protecting the rights of the people ‘in the
more sparsely settled sections. It was not intended -
to perpetrate an undue hardship or an injustice on
any part of our population, nur has tt operated to dé
se. The burden of proof to establish that a provision
, of the fundamental law of. the State is invalid rests.
on the plaintiff, and that burden has- not been sus-
fained. The 1952 amendmeni now in question was
not-challenged immediately following its adoption,
nor has any attemp: been made ‘to change it: by the
orderly process of amendment to the Constitution by
resort to the Same method of procedure that brought
2
“about wwe submission and adoption of said a@mend-
ment. . : sak
If a majority of the members of this Court grant.
the relief sought in plaintiffs petition and hold ‘in-
ralid the 1952 amendment to article o $2, of our
Constitution, ar unfortunate situation will result. It
must be borne in mind that the attack h-re is not on
‘he right of tue present methvers of the State senate
\ 7
.
Zsa 3
Ippendir ,
200 * 367 Micnican Reparts. - ~ . [ July
to hold their ofhees but, rather, goes to the right of
existence of those offices themsely4s as established’
utider the amendment. The people hy their action tn
1952 created additional senatorial districts, and the
new districts created: were not. in any instances
identical with those fixed under the prior ap portion.
ment statute. If the ame nmdment is adjudged inyahid.
the senatorial distriets ere ated | there hw become tot
existent, and for obvious reasons the members of the
Senate elected’ from said districts cannot he deenied
de facto officers for any purpose. There cxmnot be a
de facts officer unless there is a de jire office: The
law im-tits respect Was rather suecineliv stated as
‘tellows in the, opinion of the supreme court of the
.U nited States in Norton v. Shelby County, Ws US
425, 445-442.(6 S Ct 1121, 30 Led 17s):
“The doctriné“which gives validity to acts of of —
ficers de facto, whatever defects the ‘re may’ he in the
legality of their appointment or e' ection, 1s founded
upon Considerations. of policy ana necessity, for the :
protection of the public and andividuals hose inte?
ests may be affected thereby. Ofhces are created for
the- henefit of the pul lie, and private parties are not
permitted to inquire into the tithe of persons clothed
with the evidence of such offices and in apparent pos
session of their powers and functions. Por the good
order and peace’of societye their authority is to he
respected and obeved ung In some reouher tmiode
preseribed by taw their titl® is investigated and deter
mined. It is manifest thallendless confusion would
result, Tf an every proces ing before Sueh ofheers
their title eould be called-an question. But the ides
of an officer implies the existence of an offices which
he holds. It woyld be a misapplication of terns te
‘all one an officer Whe hoids ne office, and a pull
office can exist only by foreetof law. This seem te
as so obvious that we shouldehardly feed Called U fron
to consider Any adverse Opinion On the subject but
for the carnest contention of plaintuif’s counsel that
~
teres E62] . ‘ScHOLLE, SECRETARY OF STATES 207
ns pres existence is not éssen if and that itis sufficierit
it the office be provided for Ny any le gislative’ ere
(cf ment. however. snuvalid. Their ‘position is, that:
) Ae eislative act, though uncoustitutional, may in terms
Create an office: and nothing. furthe ‘ethan its appar-—
ent ¢ Nistenecd is fece ssary to fivew alidity to the acts
h. - of ite assumed ancumbent. Pht position, although ¥
not stated uv this broad form, wmounts.to nothing
D- else. It is gifficuk€to meet it by any argument be-
. yond this statement An- unconstitutional act is not
“*attaw; kpconfers no rights; i umMposes no duties ; it
Br iepen no protection; it crdgites no office; it is, in
fetal conte mplation, : : oo as though it had
a or been passed.”
©
° In qecord with the eons dhove quote d are: c arle-
» & tony. People, 10 Mich 250; People ve Payment, 109°
Mich 55°; Aiedd vo McC¥nlass, 200 Tenn LU TL G9 SW
2d 40). If this Court enters judgment. in accora-
Tance mith k auraceta demand that article 5, £2, of
the S wie ‘onstitution 4s at] has been-fromi its in-
CO} pplor a nullity, them the State of Michigan will
necessarily be left withoutea State senate and. he nee,
‘rt awithout a. legislature that can function under the
Constitution. Striking from the fundamental law of
Méeehigan the provision for designated: senatorial dis- |
tricts will obviously terminate the existence of such
districts, ‘This Court is without power fo give to
those previously elected theréfron: ihe’ statug of de.
facto incumbents of offices that no Jonger exist.
It is interesting to note that the district court of
‘the Ufited States for the middle district of Tennes-
see, TOW tag the supreme court remanded Baker y.
arr tor f er consideration, came to the conclu-
sion (— F Supp —) that the apportionment ‘acts
‘passed by the le gislature of Tennessee were invalid,
bat dec ined: to erter a judgment in accordance with
-s>F-oe ——— se <tninnianicnceiinenninaadsaamniniigininiisiinceisit or ee
1 Appeal dismissed, 352 Us 920 (77 5 Ct 223, 1 L ed 2d 187) —
_ Repowtes, , be
<a ) . .
9
wo
° its i ppendiaz pa
o ¥ =
202 «+, 867 Micuicas Reports. [ July
its opinion. The court decided to withhold fal ac
tien on the issiies presented. including Pry deci ‘lara-
tions of invalidity or the issue of injunctive’ process,
in order to permit the selection at a State legislature,
under the alleged invalith Statutes, to act-at its: 1963.
session, t@femembers‘of such legislature to be elected
during the current year. It was pointed out that
such method af proceglure would obviate the possibil-
ity of the State being left;without a legislative body,
under the holding in Kidd v. McCanle ss, supra, as the
result of a judgment > ‘of invalidity. The court obvi-
ously realized the situation that wayld be presented
in the event of a.jjudgment entered without affording
a reasonable opportunity for th State legislature’
to act. \ :
It was apparently recognized TOG phat he 1962
legislature, which had enacted appaytionmenht stat-
utes’ during the pendency of the fitigation: and con-
sidered Yhe ‘rein purtuant to stipulavion of the par-
ties, but which .the ‘Court deemed invalid, could
searcely be expected’ to enact a‘statute that would be
sustained. For such rea@on it ayas deemed to be a
realistic solution of the proble mm te withheld ¢ ntry of
judgment, allowing a few legislature to be elected
and giving it. a reasonable opportunity to adopt
roper statutes that would not ‘offend against consti-
tuttenal provisions. Commenting en, the procedure
to be observed, it was said-in part (p—):
“This will? pe rmit -the cite of a State rk gisla-
ture under the 1962 statutes with full authority and
power to-discharge validly and legally the legis lative
functions of the State.
sembly to act with’ th/ express sanction ‘of the court
to effect, the necessary remedial measures and coy
sequently in ‘good faith’ as. far as its authority
eoncerned. Under. such poe he the restrictiv
view of the de facto rule announeed in Aidd v. We-
Canless will not apply. If it shouldbe argued ‘that
° : .
.
t will enable the rener; alé GSs% °°
2
po >
% FO ‘
* . .
—"
e e. =< : .
° iPpchdig i .
‘ . a er
- 1962 | SCHOLLE: 1) SECRETARY OF ty ATE. 208
2 ‘ > j
this is a som@gwhat techni al method to egreumvent
the ruling in. that ‘ase, he auswer is threefold:
First, Kadd v. McCanless Nee If represents a rather
technical gffort by a court t
which courts then ‘generally regaaded as involving
politica! and nongusticiable issues, a view now under-
eut by ‘the supreme court's decision in this os
Second. ‘This r remedial method has the advantage.¢
avoiding a far-mere drastic form of relief which
could conceivably entail a direct intrusion into State
affairs. -Third. It is justifiable on the basis of the
wide latitude of diseretion resting in the court in|
devising remedies in cases of this types
Accordingly, an order will be ente bod reserving:
fa judgment herein on all issues until The 1963 cen.
eral assémbly constituted and elected under the 1962
statutes has ‘had: an opportunity at it’s regular 1963
session to act on the matter of legislative ; apportion-
ment, but not later than - Jyne 3- 1963. . After that”
date, or after the date of adjournme nt of ‘the general
assenthly if occurring prior, to June-3, 1968, the ease
may be reopened upon application of any party or:
upon the court's own mietion. . However, notwith-
standing si ch time limits for reopening, full jurisdic.
‘tion is retained; and the. order will prov ide that if
hecessary or proper for atiy reason, the action may |
be reopengd at any time hereafter, either upon the
court's own motion or upon the applies ition of any
party.’
Obviously the-eourse pursued by the Federal dis-
trict court in Tennessee is adapted to the prevention
of a chacdtic condition in the State government, and
to obviate also the adoption of some method of ap
portionnient by the Court that might be subject to
"question as to the requisite authorpyetheretor.
~ What-was said by the Federal distri¢t court inde.
termining the appropriate precedure in Baker vy,
Carr is, in large meas are. applicable in’the contro
yersy bye fore us. In view of the situation existing in
Mic ‘higan, it clearly onyenrs that a iike course is
Nd entering-anarea,
)
eg .
eI }
- a at Ug)
: , ippendix a
° ; 3 f..
| i ;
204 367 Macniaan Reports. ee
een
imperative here, if a-miajorits ot this ¢ ‘our Pualiy
aD )
econeludes that ‘article 5, 82. of our present Bp
tution is invalid.
In the judgmeryi proposed ‘hy Mr. pone Kax-
ANAGHE immediate action is obviously contemplated,
If the prop sed ordéy is entered as the judgment of
a majority of the members of ths ourt partici pad-
ing in the case the obvi ious result-would be a ehaotic
coudition entailing the exerdise of doubtful powers
-of this Court, jnterferjng with the election laws of
the. State, and; likewis¢ interruptine the orderly
course of legislatige proceedings.
The: procedure . adopted by the Federal district
eourt in, Baker vy. Carr found support in prior de-
cisions cited therein. &n' McGraw vy. Donovan (DC
Minn, July 10,1958), 163 F Supp TS4, the Federal dis-
trict court of Minnesota. third division, was asked to.
hold invalid a statute enaeted By the Minnesotif legis-
lature in ‘1918 establishing legislative. distriets
throughout the State. It was asserted that the aet
Was In violation v of the State constitution. There, as
Jin the Gasp ai Dar) it was urged that the equal protec .
tion clause of the Fourteentit? Amendment to. the.
Federal Constitution was aiso violated. “The court
deferred decision on the issues presented to it in er-
der to give the L959 legisiature, the.memibers of which
werete be eleeted on November 4, 1998, an opportu-
nity to take aetion. The followin comment in the
opinion indicates the reason sér such defe sa (}
188): . eer :
. .
“It seems to ous that if there is to be a judicial
disruption of the present legislative ap portronune nt
or of the method or mac ‘hinery for eleeting members
of the State legislature, it Should net take place un-
less and until it ean be shown that the legislature
meeting in 4 Manuary, Oo) has advisediy and dettty
erately failed, and refused to perform its Comstitn
tiona! duty to redistrict the State.” | ;
“
e ¢
BU |
9
’ ippendix.1
1962] ‘ ScHOLLE v, SECRETARY‘OF STATE. 205
.
ad &
* The supreme court of New Jersey in Asbury Park
| Press, Inc., v. Woolley; 33 NJ 1 (164 A2d 705), like-
wise withneld determination of Phe questions raised
in a case challenging a reapportionment act, adopted
by the legislature of the State, in order to afford a
reasonable opportunity for legislative action. -The-
case was cited by the supreme court of Colorado in
its recent decision ¢rendered July 6, 1962) in the
case of Stein v. General Assembly of the State of Col-
grado, — Colo —., After diseussien of the practical
problems involving legislative reapportionment of
sehators and represent. ves, the court, referring
specifically to the’decision-of the supreme court’ of
New Jersey, declined to int@rvené until the next gen- -
eral assembly of the State, the members of which-will
be chosen at the November election in 1962, has a rea-
f - i Bre . .
sonable opportunity to consider the‘issues raised
with reference to reapportionment. . The attitude of:
the court is indicated by the following excerpt from
its Opinion: — . ; . kd
“We believe there. should be no judicial intrusion
mito the legislative and executive affairs of the State,
and we should be ever mindful of the necessity of
“preserving the-integrity and independence of the
coordinate branches of governmenf. “We should,
therefore, exercise an appropriate ‘degree of. re-
straint to see if they will carry out their duties. nly
if both they and the people fail to act will it become a
Judicial function to step into the void, :
“It has been ealled to our Attention that in Ten-
nesseé on June 22, 1962 (USDC ‘No 2724 Nashville y
Div) a 3-judge Federal court acting pursuant to the
mnandate of Baker v. Carr, supra (the landma@k Cise -
from which flows all eurrent reapportionment litiga-
tion) decided to retain jurisdiction to give the Ten-
nessee legislature.tan opportunit¥at its 1963 session
to enact a fair and valid reapportionment’. As au-
_thority:for so doing the eourt cited similar pro-
cedures in McGraw y. Donovan (DC Minn, 1958), |
.
ie)
¢
t
_above cited. ~ a aaa herd
Attention has been directed to the ‘situs OT that:
Sia -
A ppe nix ob,
206 1 Ree Mrcmaax Reronts. a [July ‘
sup¥a, _— v. Fortson (ND Ga, May 2 5, 1962 ),—
-F Supp — (involvifig the legislature “of g teed AG
and the recent Alabama case of Sims v. ieee 30
Lat Week 2512.” os
It is somewhat significant that the Colorado’ court
in its opinion discussed at some length the suggested
procedure involving the election of members of the
Jegislature /at large, and in doing so pointed out
practical objections to-such course. It will. be noted |
also that the decisions ‘of*State and Federal courts
emphasize the neeessity for deliberate action in deal-
ing-with legislative enactments claimed to be in vio-
lation of constitutional prov isions. The situation im
the controversy ‘before us is far more complicated in:
that the attack is made on an amendment to the State
Constitution, initiated by petition and, adopted by —
the people of the State. If the section providing for
senatorial districts and the election of senators there-
. . el . .
from is stricken from the Constitutio.. obviously ex-’
tremely grave questions will thereby be raised. It
must be said also that there is no emergency or
threatened crisis rendering hasty action imperatiye.
No reason has been or can be assigned for the con-
templated refusal to adopt the realistic method of
proceduré suggested by the deci isions of other courts,
€
will be created if this Court enters immediately a
Judgme n@ as proposed by Mr. Justice Kavanacu in’
his opinion, striking frem the Constitution the appor-
tionment of senatorial districts within the State. As
before pointed out, the atuendment of 1992 incre ased
the number of senators from 32 to 34-and materially
changed the limit. of distriets. In the 4 elections that
have followed since the adoption of that amengiment
senators have been chosen from the distriets as so
specified, including, of course, the members of the
present senate. No possible claim éan be made that
/
>
1962] - ScHOLLE 7, SECRETARY OF Static. 207
they reser ‘ut districts ¢reated bysact of the legisla-
turein ace ‘ardance with the original provisions of the
Constitution ef 1908. If the ex isting districts are
abolished, a result necessarily following expunging
article 5, § 2,‘from the fundame tal law of the State, =
« the. cone lusion cannot be avoided that ‘the offices“the
¢ present semtitors were chosen to fill will no longer
exist. - ae
The Hroposed Judgment set for y in Mr. Fustice
Kavanacn’s opinion provides for the i issuance of a>
injunetion against the defendant secaptary of State
to restrain'the primary election of candidates for the .
office of State senator, which clection is now set
“under the ge neral law of the State for August 7,
¢ 1962. °° Such an injunction will @& arly rest on-the
: ~ theory, if the proposed judgment is entered, that the
office of State senator as,now existing is abolished. ~
However, the proposed judgment would continue in a
~pthee the present members of the senate until Decem-. . ~
her OT, 1962, and the senate wofild be. permitted to |
- function as a de facto body. It thus appears that the
ar
members of the de facto senate Bill, under thie pro- . ‘
- posed judgment, be acting not by’ virtue of their dive.
tion by the people of the arious senatorial distriets—— ae
~~ created under the amendment.of 1952 but by fiat of —
_ the m: (jority of the members of this Court payttet
pating in the decision of the case. The « query nat-
urally suggests. itself as* to’ the authority of} this
“Court to thus ergate one.of the houses of the State
legislature. The proposed judgment. entry is not °° ’
consistent with any possible theory that an incum-
be nt of an oftice. existing under a law ad judged. to be |
invalid may eontinué to funetion on tHe ground that
he may be r regarded as a de facto official “Phe-gen-
‘eral rule of law unquestionably is that there can’ be
no de facto officer unless there, is a‘de jure office, z.
The decision of the supreme court of the : nited
States in Horton v. Shelby ial 118 Us 25° (6
9
PN veut ng —— ° -
————K—
—_—_—_—
33a
‘i. . 7 Sy
“tae * Appendix 1
208 267 Micnicax erie’ . " [July
S Ct 1121, 30 L i 178), above cited, declares the
general rule of law on the issue with reference to the
ostatus of a prior incumbent of an office previously
ae existing under a statute adjudged unconstitutional.
~ Decisions involving the status*of one assuming to
perform the duties of an existing office obviously are
not in point. Mr. Justice Souris directs-attention to
_ Attorney General, ex rel. Dingeman, v. Lacy, 180
* Mich 329, in support of the claim that an adjudica-°
tion that an act creating a particular office is invalid
does not prevent the incumbent from continuing to
act with a.de facto status. "The Court did not so-hold
in that decision. | Involved fasgan act of' the State
legislature undertaking tocreate a domestic relations °
court in counties hav ingia ‘population ef more than
250,000. It applied te Wayne county only and’ was
“adjudged invalid because in confitet with article D5
- § 30, of the State Constitution (190g) forbidding lo-
cal acts if.a general act can be made applicable and
furthér requiring the approval of all local acts by
electors of the district to be affected.’ Ho was also
held that thé provisions of the State Constitutibn ré-
ating tothe jurisdiction of circuit and probate courts
were violated. ° The purpose of the act was to relieve
the circuit court of Wayne county of a portion of its
‘burden. The domestic relations court -had . futic-
tioned for some time prior to ad judicdtion, and the
Court declined to hold invalid prior judicial acts
within, the scope of the .circuit court jurisdiction,
= The gist of the decision in this respect is indicate d
(p 842) in the following state ment:
Beinn”
— aSTmUCch as espondent, under the authority of
at legislativ e enactment, assumed to exercise a por-
tion of the jurisdiction of the cireuit court, which is
a constitutional court, we are of opinion, that such of
his judicial acts as are within thé jurisdiction of the
circuit courg should be considered as\those of a de-
34a
Pie ce sa pre nd:
1962 F ells v. iene oF Stare. 209
ill judge, not open to » question upon jaan:
grounds.” ;
It will be noted that. only acts that might have ie
performed by a circu judge. were declared to be
valid. Furthermore, “the Court did not hold that -the -
defendant judge was entitled to continue to’ act on
- the theory of a de facto status. When the judgment
was entered declaring nonexistent the office that the
defendant had held his functions ceased. He-was a
de facto judge as to prior acts only. The case is not
authority for any“ possible claim that if judgment
enters invalidating the section: of the.Constitution
under which the present senators were chosen such
members may continue to act for the purpose of.
creating a de fac to senate. Such a claim has no basis .
in either‘law ar logie. -
We have called attention to certain aspects of the |
the
——
proposed judgment as set forth in Mr. Justice Kav- ©
_ ANAGH'S opinion for the purpose, among others,-of
‘emphasizing the serious nature of: the problem. with '
‘ which we are confronted. Judicial interference, as
emphasizgd i in decisions above cited, in controversies
- of the nature hdre’ involved, should if, possible be
avoided. » ¢ refaconasration and action are im-
perative. It mu borne in,mind that we are deal-
ing with an attempt to. striké from our Constitution
provisions that have been placed there by the people .
of the State in wh all political power is inherent.
' Bearing in mind the origin of the amendment of -
1952, is there any, basis ‘for a suggestion that there
Was any purpose ‘of “iny idious ' discrimination” in-
volved?
“As here inbefore stated, the purpose of the ee
in the adoption of the anie ‘ndment.i in question was the
formulation of a definite plan deemed proper-for the |
protection of the people of the State and of all sec-*
tidus of the State. The fundamental law ot the State,
2.
Sow
N
we
.
ed
‘
»
4 . 5
\ =f Pc a
” ee :
3, °
ee . Pppendtr eae ; é | “9
210 ** 367 Miecnican Reports. (Tuly
like that of the. nation, involves a series of checks
and balances essential in all representative govern-
ment. ‘Fhe underlying purpose and plan. of. the
amendment must be determined by reference to all
of thé proyisions thereof: Provision was made that >
* members of the house of representatives, 110 ih num-*
bers should be seleeted from districts established on.
the basis of population... Such provision insured that
the-more populous sectiotrs of Yhe’State Should not
be discriminated against by Ynfair legislation, nor
is.there any claim that such“has aceurred., Protee-
°
~ tion from such diserimination was assured te plain-
tiff and others in like situation. On the other hand
“it was recognized that the more thinly populated see-
tions of the State shéuld not be overlooked. “It-has-
-been. repeatedly, délared, and is not tented in this
case, that in the Mterests of the general welfare the
situation with respect to all parts of the State in any
plan for thewlection, of members of the Jegislature
as . . . °
should be given due consideration. . °
Mr. Justice Souris asserts that the present. sena-
. torial Aistricts were established without any con-
ceivable or rational basis. We disagree, How could |
- syed a plan. be formulated other than by: considera-
we
geographie divisiens? The people of Michi-
pean ‘in adopting the amendment recognized the sit-
x , é&* vation existing in different sections of the State,
recognized. the pecessity for protecting all sections
and all people against possible injustice, recognized |
the necessity for a.definite plan that would accom-
.plish> that purpose, and acted accordingly. A
hicameraf legislature renders feasible such ? plan.
' Plaintiff's objections to it are predicated in the final
analysis on the desire to éreate a’situation by virtue
‘of’ which the legislature of the State may be con-
trolled by numbers. The argument is that no appor-
tionthent act is valid uniless resting on the popula.
tion basis. It must be conceded, and it cannot be <
&
“
.
a
et a 36a
‘denied, that population: alone is not the duiticlitines
cAppendix a
1962]. ScHou_e v. SECRETARY OF STATE. 211
factor. To effect ‘a desited and proper result there
may be departure therefrom, a situation that obtains
im government, national, State, and local. The un-
derlying purpose sought to be obtained through the.
relief sought by plaintiff in this ease is the obtaining.
of power on the basi# of numbers. May. the equal’
protection clause of the Fourteenth. Amendment be
- successfully invoked to accomplish that purpose? .
We think not. Such was not the intent of the people
5 of this country in the adoption of that amendment to
the fundamental law of the nation.
There is no question hére involved as to any viola-
tion of the Constitution of the State of Michigan
Justices KavanaGu and Souris have cited Giddings v.
Secretary of State, 983 Mich I (146 LRA 402); and
Williams v. Secretdyy of State, 145 Mich 447. Each
of said cases involved a statute, enacted by the Jegis-
lature, fSund to be in confiiet with the State Constitu-
tion. In neither case was any question ré ‘ised, as to
the denial of the equal protection: ‘of the law,
3In rematiding fie crise to this Court for considera-
“tion and decision it is ¢lear that the supreme court
of the U nited States did not pass on the merits of the
juisticiabte. issue found to be present. The, various"
inions filed in Baker v. Carr may not beso con-
strued. It is erystal clear that the purpose of -the
remand was to enable this Court to pass on the ques-
tion whether plaintiff has made out a case entitling |
agin him to thé relief sought. ‘The burden of proving such.
Tight is, of course, on plaintiff. Such burden has not
been botne. The people of Michigan may not be ad-
judged guilty of denying to plaintiff the equal pro-
tection of the laws. - .
For the reasons stated the validity of the nrov. ision -
of the Michigan Constitution assailed by plaintiff
should be sustained and the petition, for writ of man-"
damus should be.dismissed. oe
4
&
*
yy
‘move. were ‘reversed and the. population of his dis--
for senator and 1 senator representing his district.:
vote’for one ¢
&
37a \ i A o
Appendix al hes af, “ pe
212 > 367 Micuican Reports. . : : [July
_ Derumers and Ketty, JJ., concurred with Carr, .
C. J. Py
-DetHMers, J. ‘(dtssenting). 1 coneur with what
Mr. Chief Justice Carr has written and would add
somewhat thereto. ; Saeko ,
An équal protection of the la®s problem is pot pre-
sented. «Complaint is made of apportionme .c of sen-
commer from other. districts.” It‘is said that plain-
tiff’ vote ts pe a debased or diluted. Plaintiff.can
represents his district. The same is true of every
voting elector in the State, regardless of the popula:
tion of his district. The rights of each elector in
Michigan are, in that.respect, no more nor less than
plaintiff's, whatever the nuniber of voters .residing
or yoting with such elector in his district: If half the
people in plaintiff's district were to move from it
overright,. would plaintiff's rights in the respect
here considered be doubled, or, if the direetion of the
trict doyble’, would his mentioned rights thereby be
sar thies 2 his vote debased or diluted ptt, re
: Would the degree or extent of his. protectioh of*the
laws thereby be altered? He would still have 1 vote
t
That is all he would have if he dwelt in wdistrict less
‘ populous. Insofar, then, as the right of exercise of
the franchise is concerned, there is no diserimination,
no inequality, no vote debasgment, Tio denial of the
equal protection of the fews. So mich for plaintiff's
right to-vote for and to have his district represented
by 1 senator. - | or.
Even a dissenting opinion may, now and then,
give mise toan interesting question or thought worthy
of pursuit.. Can it be, to paraphrase Mr. Justice
‘ators on a basis such:that the senator elected from —
plaintiff's ‘district represents more electors. than-do |
ndidate for senator and one senator -
3 [ppendty i1°-
. ScHoue v. SECRETARY OF State,‘ 913
Frankfurter in Baker v. Carr, 369 US 186 (82.S8°Ct
. 691,7 Led 2d 663), that plaintiff's real or underlying
complaint is that present apportionment of the sen-
ate deprives him of what‘he-conceives to:be his “pro-
portionate share of political influence”? - Concerning:
this, Justice Frankfarter went on-to write (p 299) }
“This, of course, is the practical effect of any alloca-
tion of ‘power within the institutions of government.”
To put the question another way, is it contended that
if plaintiff's district were cut in,two, with 1 senator *
apportioned to each half, this would serve to enhance
his protection of the laws? He stil céuld vote for
‘but 1 senator, and but 1 would represent his district.
Assuming, however, that an elector might say, with
accuracy that senate reapportionment on a strictly
e 4 ° 2.6 . : pra Be
population basis, as distinguished from that now ‘re-
quired by State Constitution, would result in trans-
forming the present senate minority. of adherents to
his political faith and party into a senate majority,
would it be denial of thé Fourteenth Amendment
equal protection of the laws to deny that elector such
‘Senate: transformation? To pose the questidn is to
highlight the ludicrousness of an affirmative answer.
. _ But if the mentioned senate transformation were ac-
complished by the proposed reapportionment, what,
then, of the equal protection of the laws for electors
of the opposite political faith or-party? It is no .
answer for one to say that those of my political party. .
are entitled to: more protection ef the laws because
we are.in the majority. It was pr¢cisely that which.
‘the Fourteenth Amendment protection of minorities -
was designed to"prevent. It is obvious, then, that an
-\ equal protection of the laws question is not involved
in this contemplation. Ina republican form of gev- .
ernment, guaranteed to every State by the Federal
Constitution,! it is in the neture of things that with
_~
* 4 See US Consv, art 4, § 4.—Reporrer.
—s.— renee
of jaw” ates
en “a
/ ;
: 2 . 398 :
aode & niece | eIppendis Ae f
a4 367 Miénicas Rareiees. y [uly |
« oe e
_2 major parties occupying the field, exclusively, un.
\less their strength vi
ual, one must, for she nonce,
be the mfijority and te other the minority quairty in
legislative halls. No constitutional rights of party.
members or other groups are thereby infringed upen
nor are. they, thus denied the equal protection of the
law Ss. f
Or is the essence of plaintiffs complaint that the
alleged malapportionme nt of the-senate has worked
for him, and-others nit Michigan similarly situated,
a denial of the equal protection of the laws in-that’
resultant legislative enactments. have éonferred
lesser benefits or imposed greater burdens on them
than upon others resident -in’ less populous senato-
rial districts? This, at least, would -present some-
thing,in the nateré of-an equal protection ofthe laws
| question, Plaintiff's petition does not so allege nor
is-there aught in the reeord to show or estab lish it.
The burden of proof in that respect rests on plaintilf,
It has neither been undertaken nor sustained,
In Brown v, Board of Education of Topeka, 347
“US 488 (74S C t 686-98 ds “ed 873, 38 ATR 110},
the supreme court. of the Enited States held that
- the equal protection clause of ‘the Fourteenth Amend:
ment proliibits States from: maintaining racially seg-
woes schools. On that same day it decided Bolling
rSharpe, 847 US 497 (74S Ct 698, 98 Led R84 )/
holding that racial segr ‘gation in the publiesschaofs
of the District of (élumbia is) a denial of the dae
process of law guarantes «ul by the Fitth Amendyynt,
It was the court's. view that action wlaech would vio-
date the equal gees clause of the Fourfeenth
1
Amendment when pe rpetrated ¢ by a State/ ‘coald
scareely be *squayed eshte oe nents = the deen
Amendment's d
by the. 2 ederal/y
that “equal py tection a Sidhe be ws’ hiewen¥t ue process
phrases, it,
a
-.}
ove sale Ww hill ey CO} Av aid way
(oo
i
.
40a. AP wie)
elppendiy i J iss,
1962 Scno.ve v. SECRETARY oF Srare. - 215
_ nevertheless, ‘diseerned such ‘close relationship be- *
tween the 2 concepts and similarity in effect and con-
sequences as to cause the 2’t6 compel the same result
with respect to the 2 like factual situations in the 2
noted. cases. Cited as authority therefor was Hurd
v. Hodge, 334 US 24 (68 S'Ct 847, 92 Led 1187).
Can it be assumed, then, with the due process clayse
ot the-Fifth Amendment to the Constitution of the ..
United, States, relating to the Federal government, ©
~~ apparently seeming to the fotinding fathers to be left
- - Mnowended hy the express provision of article 1 Ned
‘of that same Constitution for selection of 2 hi
from each State, that, at a'time when the United
States Senate continued, as now, to be so composed, it
Mas intended by the adoption of the related equal
protection clause of the Fourteenth Amendment, ap-
plicable to State governments, to thereby prohibit
‘appOrtionment to the State senates on a similar
basis, not keyed ‘strietly to the population levels of
the several senatorial districts? Sound, reasoning
forbids such conclusion. To give the Fourteenth
Amendment such éffect today is to recognize some
subsequent amendment! thereof: accomplished: by
means other than Those prescribed by the Canstitu-.
© tapnitself’for its amendment. ;
_ That the United States supreme court fas not-
deemed such “to be the meaning and intent of the
equal’ protection clause.is evident enough from its
“unanimous Opinion and decision ik Minor v. Happer-
seft, 21 Wall (88 US) 162 (22 L ed 627).- There, the
court held that the rights or privileges of suffrage’
were. not witHin the meaning of the equal protection
clause, pointing out (p 175) that, if they were -guar-
_ _dttged thereby, there would have been no oceasion
‘for adoption of the Fifteenth Aqendment providing,
‘that the riglits of citizens of the United States ta
vote shall not pe abridged. “The same may be said of
the Nineteenth Amendment; providing for women’s
=>
Pod
ieee, 4 ’ >
4a ?
ae ee
ip Ippendrr Fee ae - aes
| cee ok wees a. <<
216 367 Micuiean Reports. -— [July \. Fe
“*
suffrage. The fact of the adoption of these latter
“) amendments reveals the national thinking: that the
ba)
Fourteenth-had no such purpo se or effect. See, also,
the many Federal decisions eited in Mr. Justice Kp
WARDS’ opinion“in 1960, when this case made its pre,
vious appearance before us, to the effect that the
apportionment here under attack is not violative of
«the Fourteenth Amendment. That it is and always
has, been ‘part and parcel of the pian for fepublican
government in yyoxue not only’ in the government
-of ‘the United States, but m most of the States, may
-also be observed from the f facts;and statistics and re
cital of the history of the - ‘subject set forth in that:
Spinien. This is. indicative of the national concept,
“throughout the decades At republican governme nt
and the absence’ of involvements@under the equal
protection clause and of the concurrence therein of
the United States supreme court. Baker w..Carr, ,
supra, and Scholle v. Secre tary of State, 869 US 429
(82S Ct 910, 8 Li ed 2d 1}, are not holdings to the
contrary on the merits. ‘fhe mandate to this Court
in Scholle was simply te recons sider thisase in the
— of Baker vs. Cag, supras In the latter, phe
rt was careful to.point out that it wasenot pass.
a on the merits, but only on questions of Jarisdic
tion, justiciahility, and _ st: anding of appellants as.
proper parties, (See opinions of Justices. Brennan,
Douglas, and Stewart.) In fact, particular reference
is made in Justice Stewart's Opition te MacDougal!
» Green, 335 US 281 (69S Ct 4a. 93 L ed 3), relied
upon and quoted by Mr. Chief Justice Carr herein,
“and, as noted by him, Mrintustice Stewart wrote
(p 266) that the court's dgeision‘in Byker v. Carr
does not turn its back on WMaeDougall and like settled
sprecedents, That piust inescapably include the state-
ment in WacDougatl to the etfeet that. political power
is not a function exclusively of numbers and that
_ the court would not deny lo a State the power to
-
since then thronghout the country.
=
os eippendiy J]
1962 SCHOLLE tv.
assure a’ proper diffusion of political initiative as
between its thinly populated areas and those having
concentrated masses, inasmuch as the latter carry
a political weight at the: polls not available to the :
former.
- Mention is made of Giddings v..See retary of State, .
Mich 1 (16 LRA 402), and W iifianss v. Secretary
7 State, 145, Mieh 447. They held invalid appor-
tionmrents made which were not in conformity with
the requirements of the State Constitution in effeet
at that time for dipportionment on a population basis.
They are not deterininative of the question of. the
Vi alidity of the relevant provision of. the State ( on-
stitution now in effect.
Wien the’ framers of
the Constitution of the
U nited States provided for what they deemed to be a
republican form of government, and cnarant¥ed it
equally to the States, they attempted no innevation
with respect fo formation of a congress composed of
ai house’ of representatives, to be. elected approxi-
mately according te population, and a Senate, eon-
sisting: of members selected on a differant. basis,
namely, 2 from each State regardless of the res pee
tive we ographical sizes or populations of the States.
They were following the patterntor legisintive ap
-portionment already in tte et in the States, as tt has
been ever since in most of the States. That this was
not through inadvertence byt by design is evidend
enough from writings of the time when the -Constitu-
11m Was-adopted and the course of aetion pursyed
The follow Mtr
excerpts from ‘Phe
Federalist are
the subject:
“Tt is a misfortune ine ident, to republican govern-
ment, though ina iess degree than to other govern-
nie nts. dhat those who administer it may forget their:
obligations to their constituents, and prove untaith-
e
P
os
SECRETARY OF STATE. ‘S7
enlightening on -
es
s
‘
~ .
° ¢
“43a
* .
¢ iPpendix of
218 > “B67 MicHiGan REPORTS. : (July
ful to their important trust. In this point of view, a
senate, as a second branch of. the legislative assem-
bly, distinet from, and dividing the power with, a
first, must be in all cases a-salutary check on the
government. It dowbles the spe urity to the people,
dy requiring the coneurrence of 2 distinet bodies in
- schemes of usurpation or perfidy, Where the am
bition or corruption of one would otherwise be ve
ficient. This is a preeatition arate st such clea
principles, and now so well understood ‘in the Uni ited
States, that it would be more than superfluots te
enlarge oon it. | will barely remark, that as the im
probability of sinister combinations’ w ill be in pre
portion -to the dissimilarrty in the genius of the 2,
bodies, if must be politie to distinguish them from
‘each ofher by every circumstance which will consist
with a due harmony in all proper measures, and with
the. genuine prinetples of republiean government.’
y aper No 62.
me ape! No 63 contains this statement : .
“It may be suggested, that a people spread over an
extensive region cannot, hike the crowded inhabitants
of a small district, be subject to the infection of vio
lent passions,.or to the danger of combinipg in pur
ssuit of unjust measures. J am far from denying that
‘this i is a distinction of peentiar importanee, J have,
“on the contrary, endeavored in a former paper te
show, that it is one of the pr inc ipal ree ommendations
of a contederated re public.” ite
In Paper No 51 the following is stated:
“It is of great iportance in a republic not only to
cuard the society agaist the oppr essien of its rulers,
“but to guard one part of the society against the. in
JUSTICE of the other pars. Ditfere nt mterests pecs
warily exist in different classes of citizens. Tf ama.
jority be united by a common interest, Uhe rights of
the minority will be insecure, * * * Whilst all
«authority in it (TF ‘federal republic) will be derived
from and dependent on the society, the society itself
. Py
. a ippendry ye i
162] @. Sc HOLLE., SECKETARY orState, ., ‘219
will be broken into so many parts, interests and
Classes of citizens, that the rights of indix iduals, or
of the minority, will be in little dange ‘'r from inter.
ested combinations of the: majority.”
The above was preceded by the follenine:
dut itis not possible to give each department an
rh Gl power of self-defence. In republican govern-
ment, the legislative : authority necessarily: predomi- -
nates, The remedy for this inconveniency. is to di-
vide the ini ature into different brafches: and to
render themyby different modes of election and dif-
vost principle s of action, as little conneeted with
each other as the nature of their common functions
and their common depe ndence on the. soe lety will
a
admit.” ° .
°
These writings are indicative of the spirit and pur-
Pose that occasioned the method of congressional —
and legislative ,apportionments then existing in
States, adopted for the Federal Government and fol.
lowed throughout the United States from then until
the present, :
( ae ks and balances and a diffusion of govern-
mental powers have been the genius F our svgtem
and the mainst: iv of the liberties of the people on
our free instituti@ns thronghout our national. Ne i
tory. -Whetherit be thos@inherthg ina Feder: al sys:
tem. with a-division between and assignment of
powers focthe central government over subjects of
national concern .énd reservation to sovereign States
of those of a State and local character, or in the sep-
aration. of powers between the 3 branches .of the
> govetnnient. ur both the } National and the State cove.
ernmental structures, or in the ereation ofa bicam-
. eral legislative branch, with eaeéh house a check on *
the other,’ our peoplé have continued to -reeognize
in them the bastions of ovr freedoms. These are
‘irritants, of course, tg those, impatient of what they
“*
‘
7
Z
é,
45
\ lppendiy Jf °
ae
220 ¢ S67 Maicwican Reporrs. | July
deem to be the delays of democratic processes, Who |
seck the greater efficiéney, speed and forecful action *
said to be characteristic of governments with un-
fettered powers.. Not so tor those who eontinue in
their devotion as defenders, of freedom.
“These. it is evident, were therconsiderations which
prompted the people of Michigay in 152° to adopt
by a majority of almost 300,000 the present constitu.
tional amendment for senatorial apportionment and’
to reject, at the same election, by an almost half-
‘million-vote, majority; a proposed amendment to ap-
portion hoth houses &ceording te population, Bid
the people, in their efforts to preserve a systent of
cheeks and balances partly for the purpose of pro-
tecting the interests of mmorities in sparsely popu
lated areay against organized bloes in meétropolitan
areas, thus create a system of senatorial apportion-
ment so unreasomffble, irrational, and discriminating +
as to violate the spirit of the equal protection clause ?
Lam persuaded that they did not. To quote from the
conelusion of the brief of intervening defendants:
“AXprtiele 3 of our State ¢ ‘onstitution, as amended
in 1952, merely estaldishes a rensonable,ratienat—
and—perimtsstbtr system of T cheeks and balances, in
State yoyernment. It has Jbeen said) that ‘liberty’
means detinitely limitingst he power of the sOveTCIgn,
whether that soveretgn be a king or a ma jority,’
and it is the genius of the American pyoplé that in
formulating their’Constitutions, they chose ‘to guard
against excesses’ “ot sue he majority, and to exXereise
voluntary self restraint. ’
. Interestingly enough, the present constitutional
provision does not, as sometimes thought, provide
for an apportionment and. election of senators on
merely an area basis.. Area is a factor, but rep-
resentation ino the Senate, is very considerably
weighted toward the population eoneept.. It is not
“under rural control. Out of the total of 64 senators,
2
“ — :
/ . Mapes aa oe
ae Ippendix 7
1962 SeHoi.e v. Secretary OF State. aut
s
20%-represent urban areas contdining urban com, .
munities of 106,000 or more persons. Sixty-four per, >
cent of the senators represent approximatal® 1/3 of
the area—that is, the more populoie area—of the
State. The senate apportionment is manifestly. a
combination ef the population and. area: consider--
ations, with compromise and adjustment to insure.
a check and balance system for the proteetion of alh=
sections of the State and,.as well, of all ‘people
within it. The Const#tution of the United ‘States
Was and is a compromise. 'The Constitution of the
State of Michigan is a compromise. The history of
representative government-in this country and else-
Where is a history of compromise. It is under dex:
potisin that: the necessity for COMpProOmise Chases,
Unlimited monarchs, dictators and other absolute
rulers often have felt no. need to bother with com-
promise, The same might We true under a s¥stem
styled by Jefferson as an “elective despotism”,
—~Where® majority: rule isunfettered by constitutional
restraints. Not so here where constitutional guaran.
ties and the checks and- balances of -governmental
structures are expressly designed to protect mi-
norities and ‘individyals ‘against unrestrained ‘ma-
jorities. Se <a
When the object and purpose of combining both
“population and-area factors into an apportionment
formula are to atford the checks and baliayees so es-
sential to continued freedom and protection of they
different peoples and sections of the State, it is no
valid criticism to ‘say that neither population nor
area’ equality or uniformity, was accomplished, so
long as that main object and purpose of cheeks and
balances and preservation of rights of minorities
and those in sparsely populated areas‘are subserved,
Such is the result obtained in Michigan under the
existing State constitutional provision.
.
a
6
©
. Whose consent was essential to formation of the.
dent
7 47a
Ss. ss fainted a -
222 367 Micuican Reports. S [July
The “analogy of the Federal congtess is dubbed
inapt. - Point is made that the Constitution of the .
United States was a ¢ompact between sovereign’
States which would not have agreed upon union Witb-
out the compromise providing for equal représenta-
tion in the senate for each State regardless of popu-
lation or size, while, in contrast, ‘local units. of
government in Michigan are creatures of the State
which are not. and never were sovereign entities
. =
State. This overlooks, incidentally, the subs
- admi. sion fo the Union, on thes: Senate appor-
-eYfects ang consequenees to the rights of people re-
tionment basis, of 37 States which, with the'« xeeption
of Texas, had ot been equal sovereignties sub-_
scribing to a compact. Regardless of all that, how-
ever, and whatever may be the histor:e reasons and
distinctions, in practical, everyday operation, the
sulting from senate apportionment on a nonpopula-
tion basis are-the same whether it exists "in the
Federal ar State government... Even though the
Federal senate apportionment in disregard of popu.
Jation is constitutional because of the express provi-
sien for it in article 1,,$3, end the fact that “the
Fourteenth Amendme ‘nt does net apply to. the
Federal government, it constitutes no more, but cer-
tainly'no less, aadenial of the equal protec tien of the
_Jaws to people. than does such ap portionment toa
‘State senate. This Court, today, in effect, may an-
nounce that present apporti@nment to the rh,
States senate works a constitutionally permissible
demal of the equal protection of the laws to people.
It is an announcement in. “whf sl do not join,
T coneurwith Mr. Chief Justieg Carr's: ‘opinion in
it’ entireteand j in his cone fasion that plaintiuiy s peti-
tion, should” be dismaseed. . :
ew : , - . es
4a.
&
. . 7 a
Appendix A eee ee
1962 ScHOLLE v. SECRETARY OF STATE. ‘a
Carr, C.J }., and Ketty, J., concurred with: Detu-
MERS, J. O™ -—+
‘Ke ty, J. (dissenting). T not only concur with
but completely indorse the opinions of Chief Justice.
Cane and Justice Detumers. Plaintiff states that*
this “may well be.the most significant case ever to
come before this C ourt,” and with that‘théught I do
not disagree and ‘because of 1ts importance and
significance I atm making the foliowing addition to
what has already been presented by Chief Justice |
Carz and Justice DeETHMERS.
The former attorn& general 6° Michigan (Pati —
. Apams, how*Supreme Court Jastice, who has dis-
qualified himself because he was attorney general at:
“the time of -the original hearing) took an opposite
péxition at the original hearing to thie position taken
by our present attorney general, Frank J. Kelley, at
this rehearing, as is evidenced from Justice Kava-
Nacu's 1960 opinion setting forth the following as
the contention of the secretary of State Boa the
attorney general (360 Mich, pp 11, 12): e~
“(2) Senatorial districting on a basis of area does
not deny a republican form of- government!
(3) The. equal protection of the laws provision *
of the Fourteenth Amendment to the United States
Constitution is not ‘violated, sincee— ~~
“(a) Phere.is no discrimination within a unit;
“(b) Area representation is proper and valid;
“(c) The Negro voting cases do not apply to the
Yuestion; and
“(d) Constitutions of States se chine adnniiaboie to
the Union, and providing for legislative. apportion-
ment on some basis other than population; have been
approved by congress and the president subsequent
to the adoption of the Fourteenth Amendment to
the United States Constitution.
S- 3 . e
.
6
; 49a
ae. Pics A
224 a 7 Miciniags Ret PoRTS.~ [July
“(4) The due process clause of. the, Eourteenth
Amendment,tdo.the United States C onstitution is Mpt
violated as—
“(a) Area representation does not violate tho due
process clause of the United States Constitution;
and
“(b) ‘hres, representation -conforms with our
democratic traditions.
“(5) To forbid area representation would‘require.
the elimination of similar representative methods
throughout our democratic system such as¢ repre-
sentation on—
“(a) The chunty board of supervisors;
“(b) City preeinets; and
“(¢) Other levels of area representation.
“(6) The relief prayed-for by plaintiff cannot. be-
granted for the following reasons:
“(a) If this Court declares the 1952 amendment _
to article 6 of the Michigan Constitution * (1908)
invalid, there will remain no legislative body
either de jure or de facto with power to rearrange
senatorial districts and Bice the legisla-
care: 2. *
“(e) The: plaintiff has an adequate re smedy by
seeking amendment of the State.‘ ‘Constitution by
vote of the électors.”
I agree with the attornes general and secretary
of State's position and with the deve ‘lopment of the
point by Chief Justice Carr, namely, that if this. 3
. Court declare the amendment invalid, “then. the
State of Michigan will necessarily be left without a
State senate and, hence, without a-legislature that
ean functien under the Constitution. Striking from
the fundamental law of Michigan’ the provision for
‘designated senatorial distriat’s will obviously: termi-
nate thé existence of such districts. This Court is
‘without power to give to those previously elected
' therefrom the status of de facto incumbents of of-
fices that no longer exist.”
*.
a ey ‘
; ~
“2 =Oa ;
8 e 3 ° . e*
Vv .
Appendix el
4 si 4 s
19627) Scnoiie tv. SEc RETARY oF State." (220.
W hile Attorney General Ke He 'y joins plaintiff: ‘and
petitioner in his request ‘that this © ourt declare that
articlerS, § 2, of the Michigan Constitution, violates
the eal protection clause of the Fourteenth Amend-
ment, he dfagrees with plaintiff-petitioner as to the -
remedy or relief that should be granted.
‘Plaintiff-petigoner requests this Court as follows,
“We fervently pray for immediate.relief, as above
and earlier diseussed—that a writ of mandamus 1is- »¢
sue, conimanding the’ defendant not to issue 1962
election notices for State senators *- * * peénding
an opportuiity Tor enactment of timely, valid re-
apportionment Jegislation by <the 1962 Michigan
legislature, I failure of which the defendant further
be directed to declare and eonduct the 1962 ele ‘etions
for State senators on an at-large basis.”
’
‘Attorney General Kelley, evidently realizing the”
injustice to the voters and the’ confusion. that would
result from granting petitioner’s request, makes
plain to this Court that he. disagrees with petitioner
by stating:
“The attorney general cannot subseribe to the re-
quest of petitioner that the August 1962 primary be
enjoined: gr the reason that the legishitnre should
be given€gwflicient time to reapportion the senate
and to allow judicial review to be sought by an ag-
grieved party.
| Endeavoring to sustain his contention that. the
majority. opinion (360 Mich 1) did not decide “on .
the merits,” plaintiff states: (1) “In short), that
Justice Epwarps did not’ e®press a majority judg-
ment on the merits of this cause that the “districts
were valid under the tests of the Fourteenth Amend-
ment”; and (2) “If Justice Epwanbs’ remarks aré
now taken to have been on the merits, they obviously
express erroneous conclusions.” ;
nth ¢ Sites e
yes < .
.
: Sha :
: si .. Wey.
[ppendix 1
226 2 ©=—S—sit «B87 Micnicas Reports. LFuly + *
J disagree with both of plaintif? s contentions and
direct attention .to the folloving from Justice Ep-
WARDS" opinion (pp 92, 938, 96-98, 101, 1038 -106) :
“The inte rpftation of the Fourteenth :Amend-
ment equal protection Clause comtended fot herein
_would forbid any State from having a constitutional:
scheme for legislative representation in either house
on any basis other than,one whic h results in sub-
.stantial voting equality. i ie
“No matter what the future may bring in relation /
to this contention, it certainly was net the inter. |
pretation .of the Fourteenth Amendment Hregd 3.
‘thereon by the States which ratified it.. Nor is it) ~
that adopted by the Unitéd States eongress subse-
quently in-admitting States to. the Union. Nor is
it the interpretation current-among the Majority of
the 50 States of the Union at present. * *
_ “Ofthe 87 States in the Union in 1868, nine had-
constitutional provisions for election of representa-
tives to at least.1 of the houses of theér legislatures
which based representation on constitutionally: de-
scribed. legislative distriets with constjtutiana liy al-
located -representation without any pretense of ©
guarantée of equality ‘of popular representation.
These States dre Vermont, Rhode Island, Connecti.
cut, New Hampshire, New Jersey, Delaware, Mary-
land, South Carolina, and Nevada.
“The resulting disproportion in popular reyire-
sentation was im SMe Instances far greater than
that complained of herein. In the instances of Ver-
mont, Connecticut, and Rhodes Island (alk States
‘which ratified the Fourteenth Amendment), repre-
sentation in 1] house was based upon a political unit,
witli geographic boundaries, known as a town or
ty. > : :
° “Without taking into account the ma jor - factor of
‘disproportion eccasioned by failure of legislatures
to feliow State constitutional commands to re: appor--
. tion, or such relatively minor constitutional factors
of disproportion as moiety clauses, it still appears. -
taat ~U of the ve States ce ustituting the Union at the
*
: 92a
» .
” . x i e : " .
‘ ae Ippendix 1. ,
/ .
1962] © Scnoitr rv. SecreTary or State. | 227
‘8
time af the adoption of the Fourteenth Amendment
- had in their. own constitutions provisions which pre-
vented at least 1 legislatite hotse from being based’
upon the. —— of equality of popular representa-
tion.
“Between 1868 and the present time, ‘1 additional
States have entered the Union.
“As a prerequisite to such entry, the US Const,
art 4, $35, requires congressional approval. His-
torically, congress has required States applying for.
admission to submit their proposed constitition.
See Coyle vy. Smith, 221 US 559 (31'S Ct 688,55 Ted
“853). Typic al of the form of approval is the. statute -
by which the constitution of thie, proposed St: ite’
of Hawaii was approved and Hawaii was ad?
mitted. * *
“Of the 13 States whose Constitutions were ap-
proved for admission, & such constitutions (for the
States of Arizona, po ti Hawaii: daho, Montana,
New Mexico, Oklihoma, tah)-contained provisions
for election of at least’ 1 legislative house which
fell ipto 1 of the 3 catégories of dispropurtion dis
cussed abdye. * * /*
“The ‘recent taleciul div approved constitu-
tions of the new States of Alaska. and Hawaii con-
tam State senatorial provisions whieh eall for spe-
cific districts deseribed largely.on a geographic basis,
“with a resulting: substantia! inequality’ of popular
represe ntation. Inv Alaska, the newly eleeted State
senator from the Ancherage- Palmer district «rep.
resents 87,748 constituents, as compared with the
senator from Barrow. Kobuk who represents ¢ only
0,400%—a ratio of 15:1, ° * *
“Thus a majority of the States of the Union in
IS6S, a majority of the States whith jomed the
Ennion subsequently, and a majority of the States
at the present time, had, or have, in their constitu.
tions provisions us to 1 legislative house whieh have
the effect of denying substantia equality of .voting
strength tu some voters lgraereny in more populous
e?
as
“a
Jippendix
e 367 “Micuican Rerorts. W uly
sena rial “slectorit ‘atticte based on geographic;
areas described in terms of counties, or groups of
contiguous counties, or subdivisions of a single
coufity. As we have seen, this has mgny paratlels in
the/ history, of other States froni the time ef the adop-
tign of the Fourteenth Amendment. downcto date.
The system employed appears tobe a. variation of
e 1-Senagor-per-county syste m ayhieh i is common to
many other, States.
“We note the suggestion that the I -senator-per-
‘ournty svstem may be alconstitutional classifieation
where the variation is not. We rejeet this reason.
‘ing, however.” (The, 1-senator-per-county system
would ineMichigan' produce ratios of disproportion
°
exeeeding 1,000:1. We do not think. the Fourteenth
~ Amendment may be regarded as forbidding a varia-
tion from the 1-per-county sy stem in the direetion.
of popular Tepresent ition.
“The real attack upon the classification of Michi-
gan yoters resulting fyom the 1952 senate amend-
ments, howevepris upof its purpose and its result.
It seems clearfte UF That the general purpose of the
‘disproportionate constitutional * provisions’ which |
we have reviewed was, and. is; to seek to give more
thinly populated areas of a State a specific cheek
npon the concentrated political power of the more
populous areas. Considering that the amendment
with which we dealin this ease was adopted at an
election wherein another amendment (Uroposal, No
2). designed to provide equality of popular repre
sentation’ in the Michigan senate, was defeated, it:
seems clear that this likewise was the purpose of
the majority of *Michigan voters in 1952. ~
7
~
: «34a ‘
: 2 :
sie . ‘ {ppend hy « | ; i
1962] SCHOLLE &. SECRETARY OF STATE. 229
“This Court does not deterniine the Wisdoin of
the decisions inade by the peopleef Michigan in
adopting their Constitution. By its terms, all politi-
cal power is inherent in them ‘(Mich Const [1908],
art .2, $1), subject-only, of course, to the: United
States Constitution. Me
“However distasteful to some of us the rationale
of the majerity of voters in 1952 may be as support
tor the Classification of senatorial districts which
resulted from the 1952 amendment, it clearly has
been regarded to date as acceptable under the United’
States €onstitution by the United’ States supreme
court. . ~
“The United States supreme court, in a ease in}
Which the classifications in‘a tax statyte and ordi-.
hance Were attacked) as violative of the equal pro-:
tection clause of the Fourteenth Amendment, estab-
lished this test as to elassification: ©
_ “"Kqual protection does net require identity of
treatment. It only requires that classification rest
on real and notefeigned differenceg, that the distine-
tion have some relevance to the purpose for which
the classification is nfade, and that. the different
treatments be not so disparate, relatave ‘to the dif-
ference in ckissification, as to be Wholly arbitrary.
Cf. Dominion Hotel, Tie... Arizona, 249 US 265 (39
SCt 248, 63 Led 597): Great Atlantic & Pacific Tea
Cov. Grosjean, 301 US 412 (478 (t-772, 81 L ed
LISS, D2 ALR 293) + New York Rapid Trancit Corp.
Vv. City of New York, 308 US 573 (98'S Ct 721, 82
Led 8024): Skinner Vv. Oklahoma, ex rel, Woliamson,
316 US .535 (62S C(t 1110, 86 L ed 195)" Walt rs
¥. City of St. Louis, 347 US.231, 237 (74 S C8505:
GS T. ed 660), fy -aes ae :
"En MacDougall, 835 US 28h (69S Ct 1,95 Led 3),
the court saidc(p 2S4): pote.
“It would be strange indeed, and dect rinaire, for
this qourt, applying such broad constitutional con-
ae “fe due process and equal protection of the laws,
to deny a State the power to assure a proper dif-
fusion of political initiative as between. its thinly
42
.
ippendir af
230 - 867 Micntcax Reports. [ July!
populated counties and those having concentrated
masses, in view of the fact that the Jatter have
practical opportunities for exerting their political
weight at the polls not available to the former.’
“In the face of this history and this precedent, we
find no way by which we can say that the classifica.
tion we are concerned with herein is ‘wholly arbi-
trary,” and hence repugnant to the Fourteenth
Amendment of the United States Constitution as
.the United: States supreme court has construed it
to this date.” re °
.
Plaintiff. -requests this Court to notify the legisla-
ture that unless it enacts “time ‘ly, valid reapportion-
ment legislation” the 1962 elections for State sena-
tors will be conducted on an at-large basis,
P laintiff asks this Court to issue a writ of
mandamus ‘commanding the defendant not to issue
1962 election-notices for State se nators,” evidently
realizing that he ds asking this Court to emasenlate
and render powerless the Michigan ~ ction laws,
and more particularly’ CLS 1956, § 168.163, as
“amended by PA 1957, No 125 (Stat an 1961 C um
: Supp §6. 11635, which provides:
“That the secretary of State and the various
county clerks shall receive nominatiftg petitions for
filing im accordance with the provisions of this act
up to 4 o'clock, eastern standard time, in the after-
noon of the seventh Fuesday preceding the August
primary. . .
Plaintiff is asking this Court to declare null and
void the people's mandate ‘as expressed in their Con-
stitution that their serfafors be elected from sena-
toriaf districts.
Why this haste?) Why this drastic action?, Why
ask this Court to not only deelare null and void
the present plam of spportionment adopted almost
10 vears ago by the people of our State by the ofer-
whelming majority of 294,000, but,.also, to- order
‘
‘sy,
a
. 36a
Tppeniix’ 01
- 4962] ScCHOLLE t. SECRETARY OF STATE. ° B31
an eléction that will be contrary to the constitu-
tional mandate? A plan that was directed in the
same direction as now urged by plaintiff was de-
feated by over 490,000. ;
Repez ited references have been _ to Baker vy.
Carr, 369.US 186 (82 S Ct 691, 7 L ed 2d 663).
Plaintiff asks the question whether Michiz: in- can be
distinguished from Tennessee, and states: “Justice
Harlan, for example, would. have distinguished
Scholle from Baker on several counts,”
1 wholeheartedly agree with’ Justice Harlan be-
cause: (1) Plaintiff's claim concerns only one body:
of the legislaturé while the Tennessee claim was ‘in
regard to both; (2) Plaintiff attacks affirmative ac-
tion of Michigan voters, while the Ténnessee attack
was on legislative inaction; (3) Miehigan’s: appor-
tionment conforms to the Michigan Constitution
while Tennessee's legislation’ apportionment con-
flicts with the. Tennessee constitution.
The Tennessee plaintiff had much greater reason
to.complain than, our. present Michigan plaintiff—
and yet, the Fede ral judges in ‘the Tennessee case
of Baker v. Carr refused to do what plaintiff i is ask-
‘ing this Court to do, as is ably set forth in ¢ “hief
Justice Carr’s. opinion. —
_ Tennessee will hold an eleetion under the Teanee-
see election laws .in 1962, but plaintiff insists that
that must not happen in Michigan. I do not agree
with plaintiff's contention in this regard. :;
TBeoncur with Chief Justice Carr and Justice
Deters’ opinions in their entirety and with their
conclusion that plaintiff's petition should be dis-
F missed,
Carr, C. J., and DETHMERS, J. oincurred with
Ke.xy,. J.
a
57a
rel ppendtx
232 367% Micnican ‘Reports. { July
Sovris, J. (concurring). The facts: may be found
in the dissenting a of Mr. Jtis iew K AVANAGH,
reported at 860 Mich 1, on the oegdsion of\our first
consideration Of this case. The principal issue’
presented for our dete rmination ‘then and | now is
whether the 1952 amendments ta sections
of. article 5 of ‘the Constitution of 1908 ‘offend the
equality clause of the Fourteenth Amendment tq
the United States Constitution. By the 1952 amend-
ments: Michigan's senatorial districts were terri-
torially described, cach district to be represented by
a single senator; and. with no‘provision for subse-
quent rearrangement of the designated districts.
‘Plaintitf claims that the senatorial districts thus
constitutionally established in 1952 were and are
unconstitutionally discriminatory against him = in
violation of the “equality classe of the Fourteenth
Amendment for the reason that the arrangement
of districts was palpably irrational and arbitrary,
indeed that it was deliberately designed to accom-.
plish the diseriminatory result achieved, to-wit, con-
stitutional permanence of pre-existing grossly dis-
- proportionate senatorial representation of residents
of some areas, in one of which plaintiff resides, in
favor of reside nts of other areas.
Our prior opinions having created some confusion
on appe: al to the United States supreme. court (see
Opinions on remand in Scholle v. Secretary of State,
369 US 429 [82 S.Ct 910, 8 L ed: Yd 1]), a brief suim-
mary of them may be of some value. On our first
consideration of this ¢: ise, only 3 of the members?
of this Court held, in dissent, that the 1952 eonsti-
tutional ame ‘ndments — inv idiousty — dise ruminated
1 'fwo of the 8 ‘Tomices len partidipated in the first he aring<ol
this case no longer are members of this Bench. One of them, Mr.
Justice Epwarps, .wrote the controlling opinion and the other, Mr.
Justice TALBOT SMITH, wrote one of the dissenting opinions.
and 4.
.
.
58a
eippendix <1
: 1962] ScHoiie v. Secretary or Srare,. 233
& : ‘
against plaintiff and other residents of the State in
violation of the equality clause and that the Court ,
had the power and the duty to act. A fourth member
of the Court agreed that there was unconstitutional
. . *. ? : .
discrimination, but. he coneluded that there was no A
Judicial power to right that wrong. The remaining
4 Justices concluded that prior Federal ‘cases? had
considered similar claims of unconstitutional dis-
crimination and rejected them, thereby compelling
their -holding that the senatorial district arrange-
ment here involved was not repugnant to the Four-
teenth Amendment as they conecived the United
States supreme court to have construed it to that
I
date, 360 Mich 106 and 124.3) Five Justices of this
Court having held either that the Court lacked the
.power to grant relief or that, under prior United
States supreme court decisions, plaintiff was not
. . t . “. . . f .
entitled to relief, the petition for writ of Thamdamus
Was dismissed. Plaintiff appealed to the United.
States, supreme court and now, on remand by man-
2Colharove vo Green, 328 US 549 (66 S Cf 1198) ao 7, ed 3432);
Cook y. Eortson, 329 US 675 (67 BSCt 21,91 8. ed 500 > MacDouaal
Vv Grree n, 335 US 28] (69 S Ct 4, 93 L ed 3): South v. Pete ra, 330
US 276 (70 8 Ct 641. 94 £. ed §$54) > Remmeuw ve Smith, 242.08 gis
(72 ‘Ss c¥ Se &. 46 I, ed 685 : Anale rsoOnm Vv. Jordan, 343 VS aye (72
S Ct 4s, 96 L ed 1328); Kiddy. MV ank ss, 352 US 920 (77 8 Ct
223, 1 Led 2d 157); Radford v. Gary (Wb Okla), 445 -F “Supp
S41, affirmed 352 US 991 (77 8 Ct 559: 1 Lied 2d 540): Hartsfield
v. Sloan, 357 US 916 (78 8 3a2, ed. 2d 1863); Matthews y.
Mandir y, hen Fk Supp $70. affirmed LS 127 (26 8 Ct 256,
I. ed 2g bso), . . :
3.1f there he confusion in Washington concerning onr prior opin
jons, candor-compels ou® admission that it ¢ Vists as well in’ Lansing.
Our Chief Justice. savs today that the priog-ontrolling opinion, with
Which he spe iuliv concurred, held only bat the Court luekrd jurisdic
thon and’ the issue raised was net Pusticlable, See pp Tae, 197, supra.
Mr. Justice Harlan réad that opimon as Todo, saving that it “did”
hot so much as mention questions me rtuining to the ‘jurisdierion’ of
tue court, the ‘standing’ of the appellant, or the ‘Justielabihity’ of
dae P
i]
* his elaim.?’ Scholle-yv. Secretary of Stgfe, 309 US 42a. 420 :
4 gre. not | oe ‘
eoncluded, as do To that the controlling opinion, and those who eon.’
curred in it, decided against plaintiff on the merits in accordance
with their then eurrent views of the United States supreme court's
prior coustruction of the Fourteenth eAmendment.
‘e
f AQ:
Appendix vi
234 367 Micuican Reports. - [July
date of supreme authority, 369 US 429: (82 S Ct 910,
& L ed 2d 1), we again consider, but this time in:
the light of Baker v. Carr, 369 US 186 ($2 S Ct 691,
7 Led 2d.663), plaintiff's claim that the 1952 amend-
ments violate his Federal constitutional right to
equal protection of the laws.
Whatever doubts remain im the wake ar the ma-
jority opinion by Mr. Justice Brennan in Baker v.
Carr (see coneurring and dissenting opinions therein
‘and subsequent Federal and State cases‘), it seems
. ee
certain to me that it authoritatively disposed” of all
of the grounds articulated hy our majority in pre--
viously denying this plaintiff the ‘relief he seeks.
There can be no continuing doubt that the contro-.
versy presented is justiciablé- and that the Federal.
eases read by some of my Brothers to grant consti-
tutional immunity to inequalities ‘of suffrage such
as is. here involved, do not so hold. Nor can there
he any doubt, in the light of language contained not
-only in Mr. Justice Brennan's opinion for the ma-
jovity in Baker v. Carr but also in other opinions
filéd in that ease, both eoncurring and dissenting,
that the traditional standards for deterinining the
existence of discrimination in violation of the
equality clause applicable to other claims of invid-
OMS discrimination will he applied by the supreme
Inc, vy. Simon (June 1, 1962), 370 US 190 (appeal from NY DC SD)
(S28 Ct 1234, 8 L ed 2d 430). Moss v. Burkhart (Okla, June 19,
1962), — F Supp —-; Baker v. Carr (MD Tenn, June 22, 1962), on
remaud from 369 US 186, — F Supp —
.
4faesar vy. W ai ¢April 3, 19682), —- Idaho — (371 Ped 241
Sims ¢. Frink (DC Ala, April 14, siz , 2 .F Supp —:; Scholle v.
Secretary of State (April 23, 19625. 369 US 429 (82.8 Ct G10, 8
L ed 22 1): Maryland Commisston v ga tee (April 25, 1962), _
“Md — (180 A2d 656)°; Sanders v. Gray (DC Ga, April 28, 1962), 203
F Supp 158, appeal granted June 18, 1862, but mation to advance
denied, — US — (82 8 Ct 184, 8 Led 24 502); Wisconsin vy. Zim-
merman (Wis, fog 23, 1962),— KF Supp —; Maryland Commission vy.
Tawes (May 24, 1@62) Anne Arundel eounty e:reuit court, Maryland ;
Toombs v. Sacteas (fsa, May 25, 1962), — F Supp —;. W.M.C.A
E HUA ee,
iz
pendix “a
be ; tose
1962] ° “Sc HOLLE 0. SECRETARY OF STATE. 235
court: in determining whether inequalities of ,suf-
‘frage such as plaintiff here asserts violate his rights
to equal protection of the laws. :
No Federal bar to relief now exists, if it ever did,
assuming a majority of this Court finds, as I think ,
we must, the’ &X Xistence of invidious discrimination
against plaintiff. Baker v: Carr, supra. Nor does
any State policy bar relief, for in this State the
Court has been quick to’ strike down invidious dis-
crimination in suffrage cases. such as this where
violations of our State Constitution have been
proved. Board of Supervisors of Houghton County
¢. Secretary of State, 92: Mich 688 (16 LRA 432);
Gidd.nas vo Secretary of State, 93 Mich 1 (16 LRA
402); and Wiliams vy. Secretary oe State, 145 Mich
447. We must ‘be-at least as quick when contempt
for supreme, law permeates any aspeet of our elec-
toral process such as has been proved convincingly
to be the case here.
Too much alre ady has been Ww ikon concerning the »
details of.the 1952 amendments and their effect upon
the rights of our citizens to equality in the chambers
of the State’s senate. For these’ details, reference
must be made to the earlier dissenting opinions of
Mr. Justice Kavanacu and Mr. Jusfice Tasor
Suirn, 360 Mich-1-84. In botiy opinions the “well
developed and familiar” judicial standards under
the equi ality clause were applied and were found |
violgted: hss the T952 ainendments. In 1960 Justices
KavanacH and Situ sought, but did not find, any
rational basis for the arrangement of senatorial
districts made by the 1952 amendments. Nor could
they conceive .oftany recognizable basis upon which
the classification could be justified. Mr. Justice
Situ put it this way:
6 Bake v. Carr, td Us 3 186, at p 226.
© ay ee)
= Oh D.0
ee
“2 we
a om e .
L& ‘No : Gla
Ippendiy
236 3867 MicuicaN Reports. [July |
“We hfive sought in vain to find some formula or
formulae, pven roughly approxir ste, competent to
explain the groupings of counties and parts of
counties into setatorial districts. It is impossible.
The system, if.such it is, deties eXplanation. Even
Ahe defe mdants iv their briefs and appe madices offer
Ho Mope thea thes Jigration and reiteratron that this
is represe ntation ‘by geographteal area. But repre
sentafion by geogr: iphical area, without more, is not
enough. If it. were, ang’ gerryménder would be
valid becuuse the gerrymander always represents
some eee area, however grotesque.” 360
Mich 1, at p ob.
However done, the result in 1960, based upon 1990
census. figures, Was grossly disproportionate repre-
sentation: wi our State senate, the ratio of poputa--
tiog of rm SEE -t senatorial district to the largest
Deine 1 fo & anal: o/ % wot the hit’ mabe ‘Ts of the senate
representing Penthal 1<2 the people in the State.
Mr. Justice Kavasaon concvluded that the Toz
amendments were palpably arbitrary, discrimina-
tory, and unreasonable. Mr, Justice TaLboT Satu
conclude | ;
“There is 09 recagnizable unit emploved in the
classifications made” We have no more than.-an ~-
arbitrary division of the State into areas.” At the
best it is wholly capricious. “At the worst, it is
~ deliberate. Inve dither event it is wholly inde te ‘nil le”
360) Mich 1. at poo.
Defendants’, “iteration and ‘reiteration that this”
is representation by geogr iphical area” without
speciticatior.of de derminable basis therefor has given
Way on remand to intervenors’ claim that the .con-
‘Stitutional arrangement of senatorial districts
“gives the more thinly-populated rural areas Of the
State a specific check upon the concentrate “«d political
power of de nsely: populate ‘ds industrial urban
centers.” As a Statement of result, pone could quar-
’ ——_—
O24
cippendrxr
1962] _ ScHOLLE r.. SECRETARY OF Sratr. ' 237
re] with that. Based upon the 1960 census, the
“specific check” of | thinly populated rural area
upon the concentrated political power of a densely
populated industrial urban center (in which plain-
tiff resides) is measured now by a ratio of population
between the two of 1 to 12-1/2. That this is not an
isolated example. of disparity in senatorial repre-
sentation Is evident from the fact that 53¢¢ of the
State's population is represented by only 10 of the
o4 State senators, 29° of their number.
’
Whatever-the result, the fact remaiiis that ne! ! or
“the intervenors nor my Brothers who have writien
to dismiss plaintiffs petition, has suggested any
determinable basis for the classifiedtion here in
- volved. Assmming arquendo the constitutional per.
missibility. of the objective of the classification
posited by the intervenors; that is not enough. There
must also be some basis, rational, not arbitrary, for:
determining the classes; vet none has been even
suggested, ; ee
The difficulty does not end at this point. Tn addi.
tion to a permissible objective of Classification, and
some rational, not arbitrary, basis therefor, T have |
always assumed that none would deny there were
limits even then upon the discrimination between
‘classes the equality clanse would accommodate.
Search as T have in the briefs and in the opinions
urging dismissal, I find not even-tacit: recognition - -
of the existence ef such limitation, let alone its. dis-
cussion. ’
In short, Mr: Justice Kavaxacu.and Mr. Justice
Tatnor Sarru, with whom 1 coneurred, on criginal
decision of this case before Baker v. Carr and its
Federal and State progeny (see footnote 2), applied
the “well develeped and familiar’? judicial standards |
of the equality clause to the faets of the case and
found the 1952 amendments to $$ 2 and 4 of article
3 of Michigan's Constitution invidiously discrimina-
O3a
ippendir 1
238 _ 367 Micuican Reports. ~ . [July
tory and void. But even after Baker v. Carr pointed
the way to decision in this case on*remand, briefs
and opinions have been written which seem to deny
the happening of judicial, events since March 26,
1962. Indeed, in the teeth of the United States.
supreme court's remand of this: case “for further
consideration in the light of Baker v. Carr” (among
the holdings in which is that plaintiffs’ complaint
stated a cause of action under the equality clause
upon which they would be entitled to appropriite
relief if the proofs sustain their allegations, allega-
tions similar to those found here if the United States
supreme court's statement of Baker's Case may be
accepted as accurate ),—in the teeth of such remand,
1 member of this Court begins his opinion by denial
that there is presented here an equal ‘protection of
the laws problem.£ “The point is that meaningful
application of the equality clause to the facts of
this case requires discussion of the basis of the
classification, its uniformity ‘in application, its re-
levanee to'the objective of classification, and the
limits of permissible discrimination, This the prior
dissenting opinions did, and did well, even before -
Baker v. Carr, but no answers to their conclusions
have vet been made or even attempted. That the
standards applied in those dissents were the proper
ones is clearly evident from the opinions in Baker
v. Carr. - Jes, 3 ;
Mr. Justice Brennan established the standards for. .
the majority of the court at 36% US 186, p 226:
“The question here is the consistency of State
aetion with the Federal Constitution, ee
6 Even after having earlier concurred in that -portion of the prior
controlling opinion that ends as fojlows:,
“In the face of this history and this precedent, we find mo way
tie which we can say that the elassitication we ure concerned with
herein is ‘wholly arbitrary.tand bence repugnant to the Fourteenth
Amendment of the United States Constitution as the Tnited States
supreme court has construed it to this date.’": 360 Mich 1, ‘at p 106.
Ota
Appendix 4
1962] ScHouie v. SECRETARY OF STATE. 239
need the appellants,- in order to succeed in this ac-
_ tion, ask the court to enter upon policy determina-
tions for which judicially manageable standards are
lacking. Judicial standards under the equal pro-
tection clause are well developed and familiar, and
it has been-open to courts since the enactment of the
Fourteenth Amendment to determine, if on the par-
ticular facts they must, that.a discrimination reflects
no “policy, but simply arbitrary and capricious ac-
tion.” a
Mr. Justice Douglas, in his concurring opinion,
at pp 244, 240, applied the “traditional test under,
the equal protection clause”, citing Skinner v. Okla-
homa, ex rels Williamson, 316 US 535, 541 (62 S Ct
1110, 86 L ed. 1655),-and quoting from Williamsow v.
Lee: Optical of Oklahoma, Inc., 348 US 483, 489 (75
S Ct 461, 99 L ed 563), to the effect that “the prohibi-
tion of the equal protection clause goes no further
than the invidious diserimination.”
Mr. Justices Clark, at p 253, likewise cited W itliam-
son v. Lee Optical of Oklahoma, Inc., supra, as well
as McGowan v. Maryland, 366 US 420, 426 (81S Ct
1101, 6 Led 2d 393), in recognizing that all inequities
of suffrage. may not constitute invidious discrimina-
tion “if any state of facts reasanably may be con-
ceived to justify it.” At p 260 of, his, opinion, Mr.
Justice Clark stated that “there is no require ment
that any plan have mathematical exactness in its
application. Only where, as here, thé total picture
reveals incominensurables of both magnitude and
frequency can it be sail that there is present an
invidious discrimination.” Later, on the next page,
he pointed out that “the majority appears to hold,
at least sub silentio, that an invidious discrimina-
tion is present, but it remands to the 5-judge court
for it to make what is certain to be that formal deter-
mination.”
fsa
m)
ae i ppendiy 4 ]
240) ‘367 Micnican. Reports.. ” [July
The whole tenor of Mr. Justice Stewart/s con:
curring opinion is based upon the applicability, to
ultimate factual decision in the ease of Baker v.
Carr, of the traditional equality clause tests. See
particularly his reference to Mac pene v. Green,
supra: MecCrowan \, Maruland, supra; and Metropoli-
tan ( Casualty Insurance Co. v. Brownell, 294 US 580,
584 (55S Ct 588, 79 Lea 1070), all of which-are found
at pp 265, 266— of Mr. Justice Stew art’s concurring
opinion.
Mr. Justice “Harlan’s opinion, relying upon
MeGowan y¥. Maryland, supra, and Wailiia@mson vy.
‘ Lee Optic : of Oklahoma, Tne., supra, also recognized
the applicability of the traditional equality clause -
tes}, but concluded, “that the State action domplaified
of could have rested on some rational basis”, p 33s.
What we have, then, from Baker v. Carr ‘is con.
firmation that the “well. developed and familar”
judicial standards under the equality clause are to
be applied in cases such as this to determine the
existence’ or nonexistence of invidious. diserimina-
tion. Mr. Justice, Kavanaci’s opinion, on original
‘hearing, 560 Mich 1, beginning at p 26, refers to
many Federat and State court cases applying Such
standards to a variety of invidious discrimination
aims: It is not necessary to repeat his’ references
here; we van? however, take the law from them. The
Jessen those cases sa us is that the Fourteenth
Amendment requires substantial equality between
citizens except where there exist differences justity-
ing the classification of citizens, ‘in which event there
must be Pye geis the classes?” ma from
Gulf, CaS. R. Co. v. Ellis, 165 US 150/155 (17
S ('t 255. 41 L ed 666), the United States supreme
court in I/artford Steang Boiler Insurance’ Co. Vv
Harrison, 301 US 499, 462 (975 SC t S38 8, Sl Led 1233),
said : |
re -
“3
. Oba ; ° . "
: : y f
atppendir 1
* 1962] SSCHOLLE Vv. SECRETARY OF STATE. 241
“Mefe’ difference is not enough: the attempted ™
classification ‘must always rest upon some difference
which bears a reasonable and just relation to the
act in respect to which the elassification is roposed,
dnd can never be made-arbitrarily and wifhout any
such bagys.’” 9 :
As Mr. Justice TaLsot SMITH pointed out in his
opinion on original hearing of this case, 360 Mich 1,
at p ov, the classification must be rooted in reason,
the distinctions made between classes must have
“sOmertlevance to the purposegor which the classi-
fication is made”, quoting from Walters v. City of
St. Louis, 847 US 231, 287 (74S Ct 505, 98 L ed 660).
See, alsi, McGowan v. Maryland, supra, 425."
There cay be’ no doubt that application of these
alastract ptinciples to cases involving the electoral
process. will frequently’ present grave difficulties in
their solution. There wiil be required close scrutiny
of the object of-class#iecation into electoral districts,
of the differences among our citizens based upon
which their classification. into electoral districts is
sought to be justified, and. of the relation between
*
such asserted « lifferences and the object of the classi-
fitation. ey 2
Perhaps the most difficult problems will arise in
attempting to deterntine what is the object of the
_ Classification arid whether it is a legitimate objective
-within a permissible policy of the State. See
Wilhamson v. Lee Optical of Oklahoma, Ine.y 348
US 483 “TAS Ct 461, 09 L ed 563). Prudence re.
quires that’ we remind ‘ourselves that we are still
speaking only of the requirements of the equality
Clause of the Fourteenth Amendment. - We are not
at this point (because the-faets of our, case do not
require it) addressing ourselves to the constitutional
guarantee to every Stake of a‘republican form of.
government. Article 4, $4, United States Constitu-
tion. See Baker vy. Carr: are Light on the Consti-
‘
“ar
.
Osa
ip pe ndta
e .
a2. C«;w 367 Micuican Reports. [July
tutional . Guarantee . of . Republican - Government,
Arthur Earl Bonfield, 50 Cal L Rev 245. are,
It seems hardly-to be doubted that a State may \
have as a !egitin.ate objective of classification, the \-
_ effective representation of all its people in the-degis- 5
lative ‘branch of government by legislators known,
accessible, and responsive to their constituents’ needs
and that, so long as the districts in which the people
are arranged have a reasonable and just relation to
that purpose, the minor practical ineqialities which
unavoidably may result therefrom would not be viog
lative of the rights guaranteed by the equality
-clause. No 6ne has ‘sugge ‘sted, nor could anyone so
suggest, that such Was the’ purpose of the amend- ,
meiWs. Even if we were to assume that was the»
acaes of the amendments, the wide’ disparityain
the ratio of population between the most Dpy nous
and the least populous districts (6.5 to Beth 1952, ~
over 12-1/2 to 1 today), a disparity neither minor, —
nor unavoidable, would require our finding the
amendments invidiously discriminatory in violation
of the equality clause and, therefore, void. —
As yet unresolved is the question whether a State
may, as a'matter of State policy, have as, ity objec:
tive in classifying its pe@ple into electoral districts,
the dilution of-the voting strength of Some in favor
of others. That, it would seem from the publie con-
troversy which followed announcement of the deci-
sion in’ Baker v. Carr, is the significant question.
And that was °precisely the objective of the 1952
‘amendments to our Constitution, an objective mot
difficult to perceive. See Mr. Justice Kavanacit’s
opinier a&t 560 Mich 1, 40, and Mr. Justice. Tauser
-“Sairu’s at S60 Mich 1, 47. Whether or not the ob-
jective’ was permissible, a decision which need not
be reached here although it is assumed to be permis-
sible in the current opinions for dismissal, the ar;
rangement of the districts Was made without any
o
fis
a
ippendie
1962] 2 Scufoue. rh. SECRETARY OF STATE, | ' 943
. discernible or conceivable basis, let ales Upon. any
‘ational basis, and for that reason cannot withstand
plaintiff's constitutional attack.
Bevend the objective of affording to citizens ef.
fective representation’ in the legislature, it is dif-
ficult forme to co@ive of any other legitimate State
purpose for chassification of citizens in ther. par-
ticipation in the electoral process,” a process
inherently the equai right of each indiv tduad citizen.
Perhaps there are sueh ‘other legitimate objectives
of classification. Which would. constitttionally justify
State denial of ‘the citizen's right toa free and un
Gated ballot, but if there are such.“none dias been
suggested nor can ang be imagined by me.whieh
would save the 1952 amendments from constitutional
invalidity,
I agree with Mr. Justice K AVANAGICS Conclusion’
that today’s declaration of invalidiiv of the 1932
amendments re Instates sections 2 and + of article 5
of the Constitution of 1908 as they existed prior to
their attempted amendmeit. lalso agree that the
‘present senatorial, districts Cannot .be sustained
under the reinstated: constitutional sections for the
reason that otheir eross population disparities vio
late the reinstated requirement. that. they be ar
ranged in accordance: with population, as that, 1
quirement has heen construed in Gide lings. Reise ,
faryoof State, supra, and Williams vy. Secretary of
State, supra,
This bri Iees mie te ‘the matter of relief, Mr. Justice
Kavanaci's proposed judgment contemplates that
the presently cons tituted ‘senate may continue to
-funetion during the balance of the terms of its Riem.
bers, notwithstanding our devlaration of iny alidity
Of the comstitutional provisions which arranged the
distriets within which its m emibers were elected, on
the theory that mitil suecerded by legally. elected
senators the present incumbents ‘shall be.entitled to
OY,
\ : : . i ppendirc |
ry y . one ¥ > 2
244 367 MicruGan Reports: | July
-ment of this Court may be effectuated,—in other
serve as de fatto offiéers. He also contemplates that
fire incumbe nt senators preperly may participate in
the enaetment of laws by means of which the judg-
words, that the senate districts be rearranged in
accordance with the provisions of reinstated sections
2 and 4 of article 5 of the Constitution of 1905 and
Means Prov, ided for the nomination and election of,
senators therefrom for the ensuing legislative term.
The Chief Justice, relying: upon Vorfon ve Sheliw
County, Vs ES as (OS Ct li2l, 380 Led 178), and
citing Carleton ve People, 10 Mieh 250; People x
Payment, 109 Mich 558; ahd Widd vo MeCanless, 200
Tenn 275 (292 SW2d 40), asserts that by our ruling
that the 1992 amendments are void, “the senatorial
distriets created thereby become riomexistent™ sand,
consequently, he concludes that the imeumibents ear
iot act as de facto officers ‘in the absence of dy ure
offices, Presumably, it would folldw from his eon
clusion, there being no de jare nor dé facto State
senators following our judgment today, either that’
the full jegislative power of the State resides exclu
sively in the House of representatives Which emia
adone legalhy: enaet the necessary laws to étreetuate
nr
the Court’s Judgment, or that the whole legislative
process js suspended for lack of a valid!y existing
i yy . _ ° . .
senate. The prospeet of an unicameral Tecishutnre,
even for only the time it may take to esti ablish Hew
senatorial seats pursuant to the Constitution, pre-
sent? a hehdy temptation for judicial experimenta
tion, The other prospeet, which one of my. Brothers
eavlber? characterized as an “argument om ferrorcn,
is not a practical possibility so long as-this Court
exercises responsibiy its authority. TP know of no
constitutionally responsible. court im the tand whic
7 Mr. ‘dialoe SLACK, Scholic v- Severe tary of State, 3860 Mieh* 1,
l2u. : : .
re
AVUa_.
ippendix
1962] ScHOLLE . SECRETARY OF State. 245
ever has, or would,. countenance such a chaotic re-
sult rand, certainly, there is no compelling reason
for us, to lead the way.
The de facto doctrine is another of our legal fic-
tions by.which the law manages somehow to’ pre-
serve orderly governmental precedares when by
‘some legal defect inv alidating one’s title to public
>
office, his otherwise valid acts will be upheld by the
courts. Otherwise, all who have business to: transact
‘with public officials would be compelled to ascertain
their status as de jure officials at pain of invalidity
of acts done under color of title to office.” The duc.
trine has a salutary effect, thus broadly stated, but
its obvious beneficial effect has been limited by some
courts which have said that the doctrine does not
apply where there is no de jure office. Norton vy.
Shethy County, supra, relied. upon by the Chief
Justice, is such a ease but, like others so limiting
‘the doctrine, it involved a situation where an office
was attempted to be created, by act subsequently
deelared mvalid, to perform duties constitutionally
delegated to another office. Limitation of the ES
trine in such cases settles what is fundamentally
dispute between 2 contenders for public power—one
a de jure and the other a de facto officer. In the
absence of such eontlict, w here the only question is
whether validity is to be given .to the acts of a
de facto officer whose office is fourd to. have bee n
illegally created, there appears to be no reason in
logic. or law.to so restriet or otherwise limit ap-
plication of the legally convenient de facte doctrine.
‘In Norton, the officers whose rights to office were
- beng challenged were asserting powers constita-
tionally delegated to the justices of the peace of the’
county. There were de jure officers performing such
duties whereas here there is no-such conflict between
warring contestants for publie office. “The factual
distinction, in my view, is significant. In‘ Norton,
a
i Jia
Append of
: .
246 367 rceais Reports. [July-
_faiture to find the usurpers te be de facto offieers
did not result in a failure of performance of any
governmental office, let atone the legislative branch
‘of government, ®s is the case here. ;
In the case.now before us, it is not correct to say
that the 1952 amendments which we here deelar® in-
valid created the senate, or the office of State senator,
nor does the Chief Justice so say. He refers to the
‘amendments as having ereated the senatorial dis-
tricts and in this he is right. This distinction also
is important in considering Whether the refusal to
apply the de facto doctrine in the Norton ease has
any applicability to our facets. Section 1 of article
9 of the Constitution of 1908, concerning the validity
of which no challenge has*been made, vests the legis-
lative power of the State in a senate and house of
representatives, subject to a reservation of some ef
such power to the people themselvesgs That is the
valid constitutional provision whi ereaies the
senate, membership in which the tneumbent senators
claim to possess andthe powers of which have been
asserted continuously since 1953 under eolor of what
was a presumptively valid constitutional arrange-
ment of distriets. | think no more is required to
invoke the de facto doctrine to uphold the prior ae-
tions of the State senate and to afford it sufficient
continuing status, at least until December 51, 1962,
to preserve orderly government in this State and to°
provide a means by which the legislative branch of
yovernment can be organized next yveur as is re-
quired, by our Constitution,
leest it be thought what ts here said is a novel
dep: irture from the law, reference should be made to.
the « opinions in Carleton vy. People, 1 Mich 250, cited
by the Chief Justice aschas been noted above. There,
county offieers were re ognized as officers de facto.
who had heen elected to fill offices which had not vet
‘been legally ereated, the acl creating such offices
~_2
722
°°
4 Ippendye.. i
1962] SCHOLLE Y. SECRETARY-OF STATE. - 247
_ having been passed by the legislature without giving
it immediate effect so us to become law before the
election. In Attorney General, ex rel. Dingeman’ v.
. Lacy, 180 Mich 329, the acts: of a domestic relation’s
court judge of Wayne county were ‘upheld by a
unanimous court as the acts of a de facto officer atter
the legislative act creating the court was declared
unconstitutional, the cireuit court having ‘been
granted by the Constitution the jurisdiction at-
tempted to be granted by the legislature to its newly .
created domestic relations court. Reference should
also be made to the cases cited in 43 Am Jur, Public
“Officers, § 475, from which it appears that Norton vy.
Shelby County, supra, is not by any means univer-
sally followed by the various State courts. I see
absolutely no reason in logic to follow it in this:
case, nor does our law, legislative or eommon, re-
quire that we do so. .
The problem with which we deal is too ¢omplex
for’simple solution. I have tried in this opinion to
suggest some of the factors which anay be judicially
considered in determining compliance in such mat-
ters with the guarantees of equal protection pro-
vided by our own article 2 as well as the Fourteenth
Amendment... Because the judicial problem is new, -
We must draw upon analegous situations in which
/ such guarantees of equality have been applied. This
‘can be, by the nature and magnitude of the problem,
no more than a first.effort at understanding it and
recognizing its-outer boundaries.
For reasons. stated above, I join in Mr. Justice
KavaNnaGu’s disposition of this case.
, Oris M. Smira, J., concurred:with Savrts, J.
°
Buiack, J. (concurring). At present writing 5
opinions of this case, aggregating 76 typewritten
»
my:
c
Appendiy 1
248 367. Micnicas Reports. ‘| July
sheots, have been submitted for consideration of
other members of the Court. Surely,- borrowing
now from Mr. Justice Clark (Baker v. Carr, 369 US
186, at p 251 [82S Ct 691, 7 L ed 2d 665]), what
we write bursts with too many words that go through
so much and say so little. I would get back on the
Federal track, the better to ascertain where we are,
‘and where we should and so must go.
First: Palatable or not, it must be acknowledged
by all that the Supreme Court of Michigan does not
have the final word for the ease before us. We sit
now, exclusiveiy as an inferior court, by direction of
the United States supreme court, “in order that such
proceedings may be had in the said cause, In con-
formity with tlie judgment of this [United States
Supreme] court aboye ‘stated, as aceord with right
and justice, and the Constitution and Jaws of the
United States, the said appeal notwithstanding.”
By such mandate we are tolel to determine the merits
of a presented Federal question; not to decide
whether we personally prefer—or do not prefer—the
questioned amendments of our State’s Constitution,
and certainly not to determine whether the amount
of the majority vote cast 10 years ago for such
amendments is sufficient to overcome the Federal
equality clause. No.majority vote east within a
State. however overwhelming or even unanimous,
san overcome such pre-eminent law. The reason ©
“This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof;
ana all Treaties made, or which shall bemade, under
the Authority of the United States, ‘shall be the sn-
preme Law of the Land;:and.the Judges in every
State shall be bound thereby, any Thing in the Con-
stitution or Laws of apy State to the Contrary not-
withstanding.” United States Constitution, Art 6
2).
1 Mandate of supreme court of the United States. —REPORTER,
.
tit’
-
ippendiy’
1962] ScHOLLE v. SECRETARY OF STATE, 249
. Second: With triumvirate backs turned upon
what proceeds apace—under Baker v. Carr—-in many
of the States; a tuneful triphony is sung for preserva-.
tion of what my Brother Detamers repeatedly re-
fers to as “republican government.”* The song is
not ended. Judging by past dissertations, the politi-
cal melody will linger on until all voices are stitled
by that final Judgment of this case which, sooner or |
later, will be entered upon Federal precepts. “Inter-—
vention” by the Federal supreme court seems to ir-
ritate the more, Baker v. Carr. and Justice Kav-
ANAGH’Ss Opinion having applied fresh’ salt, as our
former Chief Justice beholds what to him'are the
progressively lamentable doings of high court jus-
dices he has dubbed “iudicial aetivists.” (See U.S.
News issue cited below, p93.) Compare his stirring
appeal today, for protection of “republican govertr
ment™.from the meddlement of activistie Judicial offi-
cers, With what was said by him 3 vears ago last
December, in New York City: ,
“That there has been a trend toward centralization
in Washington can seareely be gainsaid. Challenged
at milepos‘s along the way, it has advaneed under
the green light of judicial decisions, * * *
“These are part of the body of decisions giving rise
to a coneern that, by judicial construction, national
powers are being too greatly and dangerously en-
2Mr. Justice Frankfurter, dissenting -in Baler vo Carr. declared
(p $24) what regrettabiv seems to be, that “Apportionment battles
ite overwhelmingly party or intraparty contests.” Ry appended
footpote the justice calls attention to “an instanee of a eourt torn, in
fuet ar fancy, over the politicul issues invelwed ino respportionment,”
citmg State,-ex rel. Lashly. v. Becker, VOU Mo 560 (235 SW 1017
fees J have reviewed the case and discover among oth: rs this
berimyg eontession (p 625 : a
“Shackled ss we are with partisan bias and prejudice, it is
humiliating to confess that even’ judges in our highest esurts are
unable to divorce law and polities. in emergencies, great and small
they have heard the Macedonian ery, and have not been disobedient -
to the call.” .
Yes, that Maeedonian’ éry has been audible, all lover Michig‘an,
ever since thig sult was instituted in 195y. :
>a)
6 s
pa
if ar ie 4
| °
250 367. Micnigan Reporrs. [July
ae: c : ° {
larged and State and local power correspondingly
contracted, Of this trend, the conference of chief
justices and many others have spoken with conster
vation. Great judicial self-restraint in this eritial
field of Federal-State relationships was en soins.
upon the supreme court by the membe Ts of the con
ference. | econeur.” ‘ ‘
® What indeed has céntributed—in Mfchigan at leas,
to this trend toward “centralization” which, at
Pasiddena, is said to have caused so much “eonsterna-
tion’? ds it not, in fulsome part. due to the steady
failure of many-times-elected -exce utrve ofheers of
this and other similarly situated States (some bet ne
presentiv consternated Brethren seate dd hiere) to
press upon legislators-—as our Governor Groesbeck
hd with sue ‘h force and effect: yn 1925-—their sworn
sath to rearrange and reapportion every 10 vears?
-As said in Justice Kavanagh's opinion, the issue be-
fore us never could have traced its way to the
Potorpac had the le vislature of Michigan, during the
deeades of the 1840's and 1950's, performed faith
fully according to consigation: aloath. Let us, then,
hace done with erm@ismn of that te which all of us,
in greater or lesser degree of course, have contrib
ted as governors, attorneys general, judges and
citizens. Instead, let us turn to duty directed: by
the supremacy clause, the National equality ciause,
and-our own fuliv prea’ pledse of the preter
tion of equal laws. And Tet us Hot report back to
our superior wourt that we farce qust afiscovered a
technical way to evade determ tnation of the merits:
sach as saving that the questioned amendments can
not he judged void without dest roving thi > law é
gure Which is ereative of the office of State senator.
sv. 3. eee aa: Wor! Aa SAGES “Wh: at & State Chief Juastier
Savs About the Supreme Court, ” Pecemt 12. 1958, pp &S8, 91, 92
addresa before the Congress of Amerie: an Industry ty “Joho RB
Dethmers, Chicf Justice, Supreme Court of Michigan.”
70a
7 [ppendtr ef
1962]. ScHOLLE v. SECRETARY OF STATE. 251:
As Justice Souris points out, the simple fact answer
to Chief Justice, Carr's “let’s do nothing” motion is
that original section 1 of article’5, the standing cre:
tor of the office of State senator, lives on as hataie
unaffected by and unquestioned inthis litigation..
Furthermore, Norton v. Shelby County, 18 US 425
(6S Ct 1121, 30 L ed 178), on which our Chief Jus-
tice presently relies, has sinte been confined most
carefully in its proper area of fact. by the United
States supreme court, See Shapleigh v. San Angelo,
167 US 646, 658 (17 S Ct 957,°42 L ed 310), and
Tulare Irrigation District v. Shepard, 185 US 1, 14
(22S Ct 531,46 Led 773). Shapleigh. quoted in the
margin,*-is ‘a fair example of such continued: con-
finement, in the courts’of the United States, of Nor-
ton’s rule that where no law creates an office such an
office cannot be occupied de facto:
Third: We are, | repeat, diree ted to consider andy
decide the merits of a Federal question the U nited
States supreme court’ has sent back to us in the
clothing of jurisdiction and justiciability. Is it not,
then, exclusively due that we should look for judicial
guidance to current federal authority, and to such
of our own cases as may.accord therewith, rather
than to the relevantly superseded seroll of the Fed-
eralists and other writings of the Colonial era? The
‘Federalist Rapers, ably conceived for times when all
west of the Alleghaniés was trackless' and savage,
were written more than 175 vears ago by men who
could not possibly have foresee n the. Fourt. enth
4“Norton vy. Shelby County, 118 US 425, is not to the waeeats.
There certain persons who un: dertook te uct a8 county commissioners -
were adivdged to be usurpers @s against others who were lawful
officers, and it was held that. as the acts-of the legislature which
ereated the board of commissioners was unronstitutional, there were
“no de gyre offices, and, therefore, no de jure officers. But the general
rule was recognized that ‘where an ofhee exists under the law, it
atters net how the appointment of the incumbent is made, sa far
as the validity of his acts are concerned. It is enough that he is.
clothed with the imsignia of the office, and exercises its powers and
functions.’ ” Z
lppendiy ol
252 367 Micnican Reports. . [July
Amendment, the .s¢eds from which the amendment
- grew, and its final mandate of equal protection. The
equality clause of the Fourteenth Amendment is an
order directed to each State. It has nothing to do
with the political structure of the National govern-
ment and, in the context of our current problem, is
an understandable contradiction of that structure.
The clause pointedly prohibits each State.from deny-
ing “to any pefson within its jurisdietion the equal
protection of the laws.” It does, under direction of
our superior, put upon us a new task, that of in-
quiring into the merits of plaintiff's, claim of denial
by Michigan of-Fourteenth Amendment equality of
voting rights; an inquiry 3 of us resolved affirma-.
tively in Schelle v. Secretary of State, 360 Mich 1,
Nothing done within the borders of Michigan,
whether by constitutional provision, statute, execu-
tive proclamation, ordinance, jor administrative or-
der, may impede the execution of that task. The
supremacy clause so dictates. So do the authorities
cited in Justice Kavanaci’s opinion, to which I would
add Bute v. Illinois, 333 US 640 (68 S Ct 763, 92
L ed 986) ° also the adjuration. which, in 1899 and
avain in 1901, wa's.declared and -epeated in the.2
Blythe Cases (Blythe v. Hinkle), 1738 US 501, 508
{19'S Ct'497, 43 L ed 783]; 180 US 333, 3388 [21'S
('t 390, 45 Led 557]).® Hence my disagreement with
Justice DetuMers’ repetitious and apparently seri-
‘ous postulate that “An equal protection of the laws
problem is not. presented.” “That postulate I now
8 “We recognize that the Fourteenth Amendment, as part of the
‘supreme daw of the land under heticle 6 of the original Constitution,
supersedes ‘any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding’.” (Bute vy. Illinot, p 658.)
6“The Sthte courts had eoneurrent jurisdiction with the Circuit
courts of the United States, to pass on the Federal questions thus
intimated, for the Constitution,-laws and treaties pf the United States
are as much a part of the laws of every State as its own local laws
and constitution, and if the State courts erred in judgment it was
mere error, and not to be corrected through the medium of bills such
as those under consideration.” (180 US 338.)
-Ippendtyr N
é
1962 ScHOLLE v. SECRETARY OF STATE. 253
examine, admittedly with distrust as well as curios-
ity.
in this case where our words are not final words.
_ If an “equal protection of the laws prablem is not:
presented,” the supreme court of the United States -
would not have taken jurisdiction of this case and
would not have sent it back for meritorious @pn-
sideration in the light of another equal boa et
ease, Baker v. Carr. When in the face of sneh
mandate any State court judge Says that the ques-
tion we are directed to decide “is not presented,”
he surely defies higher authority. He should be
challenged, with due vigor by others seated here,
lest silence suggest tacit ‘approyal.
Fourth: As an understating Englishman would
say, our problem is not withont difficult?. No matter
where we look and turn, the ominous storm of pre-
dicament gathers with warning of reprisals and con-
jured new reasons why this Court cannot move with
affirmative firmness. To Dirksenize our judgment by -
telling the legislature that questioned sections 2 and
4 will be judged void, as soon as that body enacts
validly. under original sections 2 and 4, is to per-,
petuate an unconstitutional ‘body for another 2
years (and doubtless more years depending on the
ontcome of 4 Supreme Court ‘elections scheduled dur-
ing the next ‘9 months). To delay judgmen. ., and
thus to knuckle before today’s threat to obstruct Fed-
-eral.as well as State justice, -is unthinkable. That
threat, once there is an overt act, will menace the.
~threateners only.?. And to dismiss the case with
J “Whoever, by threats or fo¥ee, wilfully prevents, obstructs, im-
pedes, or interferes with, or wilfully attempts to prevent, obstruct,
impede, or interfere with, the due exercise of rights or the per-
formance of dut'+s under‘any order, judgment, or decree of ‘a court
of the United States, shall be fined rut more than $1,000 or im-
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